                                NOT FOR PUBLICATION WITHOUT THE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-2022-17T2

PIOTR FRYDRYCH,

          Plaintiff-Appellant,

v.

IWONA KOLUS,

     Defendant-Respondent.
___________________________

                    Submitted November 14, 2018 – Decided December 13, 2018

                    Before Judges Suter and Firko.

                    On appeal from Superior Court of New Jersey,
                    Chancery Division, Family Part, Union County, Docket
                    No. FM-20-1673-15.

                    Ziegler, Zemsky & Resnick, attorneys for appellant
                    (Steven M. Resnick and Elizabeth D. Burke, on the
                    briefs).

                    Senoff & Enis, attorneys for respondent (Steven R. Enis
                    on the brief).

PER CURIAM
      Plaintiff Piotr Frydrych appeals from the December 6, 2017 Final

Judgment of Divorce (FJD) and from a December 15, 2017 order denying his

motion to vacate default and reinstate his complaint. Having reviewed plaintiff's

arguments in light of the record and applicable legal principles, we reverse.

                                       I.

      The parties were married on August 13, 2003, and had no children. Before

entry of the FJD, plaintiff was ordered to pay defendant $2,000 per month in

pendente lite support in addition to her $1,000 weekly salary as an employee of

his used garment business, Fashion Republic, Inc., and maintain $1,000,000 of

life insurance coverage to secure his obligations. In addition, he was ordered to

pay the fees of the court-appointed forensic accounting firm Friedman, LLP,

which was tasked with preparation of a business evaluation, cash flow, and

lifestyle analysis.

      After being represented by two different attorneys, plaintiff proceeded as

a self-represented litigant and filed a motion to downward modify his pendente

lite obligations, arguing a decline in his health and financial stability. The

motion was denied in March 2017. After returning to Poland, plaintiff contends




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                                       2
he battled severe depression thereby prompting him to seek a postponement of

a case management conference scheduled for May 30, 2017.1

       In support, he provided the pre-trial judge with a certification. The judge

attempted, unsuccessfully, to contact plaintiff in Poland by telephone at the

conference. On the record, the judge acknowledged, "for the record it appears

that [plaintiff] is claiming he is not well. He has some health issues that he

complained of, as a result of which he believes he's unable to fly back here. He's

asking for an adjournment for two months." In a voicemail message, the judge

stated:

             You allege that you are unable to travel because of your
             current condition and included various documents,
             many of which were in English, but some of which I
             was really unable to read. [2] I would say, however, that
             many of the documents were in Polish. So, the
             problem, sir, is you're supposed to be here. And, you
             do not have a good faith reason, I believe, for not being
             here in front of this [c]ourt.

       Upon defendant's oral application at the conference, the judge dismissed

the complaint and entered default, dispensing with the need for a formal motion



1
    The conference was originally scheduled for May 2, 2017.
2
   The medical certificate provided by plaintiff stated he was diagnosed with
"deep depression," with a "high intensity" of symptoms, rendering him unable
to participate in court proceedings until July 31, 2017.
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                                        3
pursuant to Rule 1:6-2 because her attorney "made the application," and the

court was "inclined to enter default today." The judge noted that plaintiff had

"been uncooperative in this matter for some time," and his non-appearance

"requires the [c]ourt to take some action."

        After the matter was assigned to another judge, a default hearing was

scheduled for August 14, 2017, and adjourned four times at the request of

defendant's counsel. On September 15, 2017, plaintiff moved to terminate his

pendente lite obligations and he submitted a "proposed [j]udgment of [d]ivorce

with settlement terms" to the judge. Since default was entered, the judge denied

the motion.

        Thereafter, on November 15, 2017, a notice of proposed judgment was

served by defendant's counsel on plaintiff in accordance with Rule 5:5-10. Five

days later, plaintiff's sister, who also serves as his power of attorney,3 filed a

motion to vacate default and reinstate the complaint, and she also requested an

adjournment of the December 6 final hearing date. The judge denied the hearing

adjournment request, and scheduled plaintiff's motion to vacate and reinstate for

December 15, more than a week after the hearing date.




3
    According to the record, plaintiff's sister is not an attorney-at-law.
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                                           4
      After considering factual and expert testimony in the absence of plaintiff

at the final hearing, the judge granted all of the relief sought by defendant. Nine

days later, the judge denied plaintiff's motion on the papers, finding that, "[I]n

this matter, it is clear that, for one thousand days, the matter labored on because

[of] [plaintiff's] behavior in this case. He went through . . . two attorneys. In

addition, he would not provide discovery, was constantly missing court

appearances, [and] there were numerous orders enforcing litigant's rights . . . ."

Plaintiff's sister filed a notice of appeal that was rejected and re-filed by his

present counsel. We denied plaintiff's motion for stay pending appeal. Plaintiff

raises the following issues on appeal:

            POINT I

            THE TRIAL COURT ERRED BY FOLLOWING
            DEFECTIVE PROCEDURES THAT RESULTED IN
            A FINAL DEFAULT JUDGMENT AGAINST
            PLAINTIFF THAT MUST BE VACATED.

            A.     Without notice to plaintiff, the trial court erred by
                   entertaining defendant's oral demand to enter
                   default without prejudice against plaintiff during
                   a case management conference.

            B.     Even if plaintiff had notice, the trial court erred
                   by entering a default without prejudice against
                   plaintiff at a case management conference
                   without motion practice or proper evidence
                   submission or allowing plaintiff to respond to
                   same.

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                                         5
            C.    In addition, even if a request for default without
                  prejudice was allowed without motion practice,
                  the facts did not support the standard for such a
                  severe sanction, the trial court erred by not
                  entering a lesser sanction and made no findings
                  as to why a lesser sanction should not have been
                  used.

            D.    The trial court then erred by not hearing timely
                  plaintiff's motion to vacate the default without
                  prejudice and before a final divorce judgment
                  default hearing was held.

            E.    Even it if was proper to hear plaintiff's motion to
                  vacate after the final divorce judgment by default
                  with prejudice was entered, the trial court erred
                  by not vacating the final default judgment by
                  relying on an incorrect record and by not
                  adhering to the correct legal standards as to
                  allowing defaults with prejudice to be entered
                  and stand.

            POINT II

            THE MATTER MUST BE REMANDED TO A NEW
            TRIAL COURT (not raised below).


                                       II.

      First, we address Point I of plaintiff's brief, and recognize that "[a]n

application to vacate a default judgment is 'viewed with great liberality, and

every reasonable ground for indulgence is tolerated to the end that a just result

is reached[.]'" Franzblau Dratch, PC v. Martin, 452 N.J. Super. 486, 491 (App.


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                                       6
Div. 2017) (quoting Marder v. Realty Constr. Co., 84 N.J. Super. 313, 319 (App.

Div. 1964)).

      Adjourning plaintiff's motion to vacate default and reinstate the complaint

until after the default hearing was conducted resulted in severe prejudice to him

because the judge awarded substantial equitable distribution, limited duration

alimony, and counsel fees to defendant based upon her unilateral proofs.

Compounding the error, the trial judge relied upon a stale, partially completed

Case Information Statement (CIS) that lacked supporting documentation.

Defendant did not append a current CIS to her notice of proposed judgment, thus

depriving the judge of the "complete picture of the finances" of the parties. See

Gulya v. Gulya, 251 N.J. Super. 250, 253 (App. Div. 1991).

      No analysis was undertaken as to equitable distribution of plaintiff's

garment business (potentially now bankrupt) in the face of defendant's deficient

CIS; no explanation was provided for awarding carte blanche defendant's limited

duration alimony award in the amount of $135,000 annually for a term of twelve

years without consideration of the N.J.S.A. 2A:34-23(j)(1) factors; no lifestyle

analysis was made; $131,652.78 was ordered to be paid by plaintiff to Friedman,

LLP (plus trial testimony fees), and $50,000 in counsel fees to defendant, wholly

lacking in particularized findings. The judge also failed to consider plaintiff's


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                                       7
ability to pay alimony based upon his current financial circumstances. See e.g.

Crews v. Crews, 164 N.J. 11, 288 (2000) (citing Lepis v. Lepis, 83 N.J. 139, 157

(1980)).

       The granting or denial of an adjournment is left to the discretion of the

trial judge. Kosmowski v. Atlantic City Med. Ctr., 175 N.J. 568, 575 (2003).

We will reverse for failure to grant an adjournment only if the trial court abused

its discretion, causing a party a "manifest wrong or injury." State v. Hayes, 205

N.J. 522, 537 (2011). The court must be mindful that "[c]ases should be won or

lost on their merits and not because litigants have failed to comply precisely

with particular court schedules, unless such noncompliance was purposeful and

no lesser remedy was available." Connors v. Sexton Studios, Inc., 270 N.J.

Super. 390, 395 (App. Div. 1994). An appellate court will not interfere "unless

it appears an injustice has been done." Allegro v. Afton Vill. Corp., 9 N.J. 156,

161 (1952).

       We recognize that plaintiff's complaint could be dismissed without

prejudice as a sanction for his failure to appear, or participate by phone, in the

May 30 case management conference. R. 1:2-4.4 Plaintiff litigated the case for


4
    The rule provides:



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                                        8
over two years, and retained Eisner Amper as a rebuttal forensic expert. The

record is devoid of any report being served by Eisner Amper.             Plaintiff's

healthcare records revealed a significant psychological diagnosis that arguably

prohibited him from participating in this proceeding in a meaningful way. The

good cause standard applied to vacating default and reinstating matters was

overlooked by the trial court. Because the court abused its discretion by not

deciding plaintiff's motion to vacate and reinstate the complaint before going

forward with the default hearing, the court erred, and we are constrained to

reverse, vacate the FJD, and direct the trial court to enter an order reinstating

the complaint. We need not reach plaintiff's other arguments for the proper

disposition of this matter.



            (a) Failure to Appear. . . . if without just excuse or
            because of failure to give reasonable attention to the
            matter, no appearance is made on behalf of a party on
            the call of a calendar, on the return of a motion, at a
            pretrial conference, settlement conference, or any other
            proceeding scheduled by the court, or on the day of
            trial, or if an application is made for an adjournment,
            the court may order any one or more of the following:
            (a) the payment by the delinquent attorney or party or
            by the party applying for the adjournment of costs, in
            such amount as the court shall fix, . . .; (b) the payment
            . . . of the reasonable expenses, including attorney's
            fees, to the aggrieved party; (c) the dismissal of the
            complaint, cross-claim, counterclaim or motion . . .; or
            (d) such other action as it deems appropriate.
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                                        9
      To summarize, we reverse, vacate the FJD, and remand for a different

judge to enter an order reinstating the complaint and comply with our mandate.

A case management conference shall be scheduled within thirty days to address

discovery issues, including expert reports, provide deadlines for both parties to

file updated CIS's, determine if a guardian should be appointed for plaintiff, and

to schedule a trial date. We do not retain jurisdiction.




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