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TABLE OF CONTENTS ................................................................................................................. I NEW JERSEY DYFS v. T.R., 331 N.J. Super. 360 (2000) 1

However, the rule in New Jersey is that a direct appeal will not................................................. 2 lie from a judgment by default. Haber v. Haber, 253 N.J. Super. 413, ....................................... 3 416 (App.Div. 1992) (citing McDermott v. Patterson, ................................................................ 3 Page 364 ...................................................................................................................................... 3 122 N.J.L. 81, 84 (E. & A. 1939)). The proper course was for T.R. to ....................................... 3 apply to the trial court for relief from the default judgment ........................................................ 3 pursuant to R. 4:50-1 where he was obligated to demonstrate both ............................................ 3 excusable neglect and a meritorious defense. In Haber, quoting the........................................... 3 court of Errors and Appeals, Judge Keefe stated:........................................................................ 3 The reason underlying this rule is that the very theory and ......................................................... 3 constitution of a court of appellate jurisdiction is only the ......................................................... 3 correction of errors which a court below may have .................................................................... 3 committed, and a court below cannot be said to have ................................................................. 3 committed an error when its judgment was never called ............................................................ 3 into exercise, and the point of law was never taken into ............................................................. 3 consideration, but was abandoned by acquiescence or ................................................................ 3 default of the party who raised it. ................................................................................................ 3

ROSA v. ARAUJO, 260 N.J. Super. 458 (1992)

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Initially, we observe that the denial of Araujo's first motion ...................................................... 6 to vacate the default judgment was a final order from which...................................................... 6 defendant had the right to appeal. See Haber v. Haber, .............................................................. 6 253 N.J. Super. 413, 601 A.2d 1199 (App.Div. 1992). Defendant's ........................................... 6 attempt to relitigate the same issue under R. 4:50-1 by simply ................................................... 6 raising different arguments arising out of the same facts would ................................................. 6 ordinarily be precluded on principles of finality. However, ........................................................ 6 because this appeal raises a facial question of due process ......................................................... 6 relative to the court's jurisdiction over the defendant, we will .................................................... 6 address that issue on its merits. ................................................................................................... 6

RULE 4:33. INTERVENTION

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NEW JERSEY DYFS v. T.R., 331 N.J. Super. 360 (2000)
NEW JERSEY DYFS v. T.R., 331 N.J. Super. 360 (2000) 751 A.2d 1098 NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, Plaintiff-Respondent, v. T.R., Defendant-Appellant. IN THE MATTER OF THE GUARDIANSHIP OF L.R.N., A Minor. DOCKET NO. A-1343-99T4 Superior Court of New Jersey, Appellate Division. Submitted May 17, 2000 Decided June 6, 2000

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County. Page 361 Before Judges BAIME, BROCHIN and EICHEN. Ivelisse Torres, Public Defender, attorney for appellant (William Welaj, Designated Counsel, of counsel and on the brief). John J. Farmer, Jr., Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; James F. LaFargue, Deputy Attorney General, on the brief). Ivelisse Torres, Public Defender, attorney for minor child L.R.N. (Craig D. Robin, Assistant Deputy Public Defender, on the brief). The opinion of the court was delivered by EICHEN, J.A.D. T.R., the biological father of L.R.N., born June 18, 1992, appeals from a final judgment entered by default on September 27, 1999, Page 362 terminating his parental rights to L.R.N. and conferring guardianship over the child in favor of the Division of Youth and Family Services (Division). T.R. contends that "the trial court erred by terminating [his] parental rights on a default basis, thereby depriving him of an opportunity to be heard regarding the termination and guardianship issues." While acknowledging that he failed to appear on the date scheduled for the guardianship trial, and at a previously scheduled hearing, T.R. maintains that the court should have exercised its discretion by requiring defense counsel to

personally contact him to assure that he had received notice of the rescheduled guardianship trial.[fn1] These are the pertinent facts immediately surrounding the entry of judgment by default. On June 10, 1999, the Family Part entered an order requiring defendant to appear at 1:30 p.m. on July 29, 1999 "to provide testimony as to why the Court should not enter an order terminating [his] parental rights" to L.R.N. The record reflects that defendant had been served personally in court at a prior proceeding with the order scheduling the guardianship proceeding for July 29, 1999. In addition, notice of the proceedings had also been sent to T.R.'s home by regular and certified mail. On July 29, 1999, T.R. failed to appear and the Family Part judge entered a default against him "with the understanding that he may apply within 30 days to vacate the default. . . ." Subsequently, it appears that the default was vacated after T.R.'s attorney advised the court that T.R. claimed he was not present on July 29, 1999 because he had been involved in an accident on July 28, 1999.[fn2] Page 363 Thereafter, T.R.'s attorney sent notice by regular and certified mail to defendant that the guardianship proceedings had been rescheduled for September 13, 1999. On September 13, 1999, T.R. again failed to appear. Consequently, the judge entered a default, allowed his counsel to be relieved, and directed the Division to proceed with its termination case on a default basis. At the conclusion of the proof hearing, the judge did not make any findings of fact or conclusions of law; he simply entered an order on September 27, 1999, concluding that the Division "has met all of the standards for termination of parental rights as established by N.J.S.A. 30:4C-15.1" and that it was in "the best interests of the minor" that T.R.'s parental rights be terminated. T.R. did not file a motion for reconsideration or move to vacate the entry of the default judgment terminating his parent rights to L.R.N. and conferring guardianship over the child to the Division. Instead, he filed this appeal challenging the adequacy of the notice to him of the guardianship proceeding, arguing that the trial court should have ordered counsel to serve him personally with notice of the new trial date and that the inadequacy of the notice "deprived him of an opportunity to be heard regarding this most important issue." We conclude that defendant's challenge to the notice procedure employed by the trial court is clearly without merit. R. 2:11-3(e)(1)(E). In addition, to the extent T.R.'s appeal attempts to overturn the default judgment on this appeal by arguing the merits, we reject the attempt. Notably, defendant does not explain why he failed to appear. Neither does he provide us with any evidence to contradict the experts' opinions upon which the trial judge presumably relied in terminating his parental rights, except to state that he has always maintained visitation with L.R.N. However, the rule in New Jersey is that a direct appeal will not

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lie from a judgment by default. Haber v. Haber, 253 N.J. Super. 413, 416 (App.Div. 1992) (citing McDermott v. Patterson, Page 364 122 N.J.L. 81, 84 (E. & A. 1939)). The proper course was for T.R. to apply to the trial court for relief from the default judgment pursuant to R. 4:50-1 where he was obligated to demonstrate both excusable neglect and a meritorious defense. In Haber, quoting the court of Errors and Appeals, Judge Keefe stated: The reason underlying this rule is that the very theory and constitution of a court of appellate jurisdiction is only the correction of errors which a court below may have committed, and a court below cannot be said to have committed an error when its judgment was never called into exercise, and the point of law was never taken into consideration, but was abandoned by acquiescence or default of the party who raised it. [Id. at 416.] As we observed in Haber, the trial judge is in the best position to decide the merits of a defaulted defendant's arguments, and the "[d]efendant's voluntary conduct in absenting himself from the proceedings should not give him a better advantage on direct appeal than he would have as a movant under R. 4:50-1 where he is obligated to prove both excusable neglect and a meritorious defense." Id. at 417. Accordingly, we dismiss the appeal without prejudice and grant leave to T.R. to file a motion under R. 4:50-1 to vacate the default judgment. We do not take any position as to whether such an application should be granted. However, we would be remiss if we did not acknowledge the significant effect our disposition here may have on L.R.N. in the sense that it will undoubtedly cause delay in securing his permanent placement should defendant seek relief from the default judgment in the Family Part. See I/M/O K.H.O., 161 N.J. 337, 364 fn. 1 (1999) (noting that N.J.S.A. 30:4C-15.1 has been amended "placing an emphasis on permanent placement"). With this in mind, we therefore direct the following accelerated proceedings to be implemented should defendant file a motion for relief from the judgment under R. 4:50. See Enourato v. New Jersey Bldg. Authority, 182 N.J. Super. 58, 66 (App.Div. 1981), aff'd 90 N.J. 396 (1982) (citing DeSimone v. Greater Housing Authority No. 1, Page 365 56 N.J. 428, (1970)) (noting that R. 1:1-2 and 2:9-2 permits a court to accelerate proceedings when a prompt final disposition is required). If defendant determines to challenge the default judgment, defendant shall file his motion to vacate within twenty days of the date of our filing this decision. The Family Part shall consider and decide the motion within five days of hearing the application. If the motion is denied, the Family Part judge shall make specific findings of fact and conclusions of law, stating the reasons why defendant has not demonstrated both excusable neglect

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and a meritorious defense, which shall include a full explanation of the basis for the judge's decision to terminate defendant's parental rights. If defendant decides to appeal from the denial of his motion under R. 4:50, he shall file his notice of appeal within five days of receipt of the order denying the relief and shall order a transcript of the proceedings on an expedited basis. Briefs shall be exchanged twenty days after receipt of the transcript and the matter shall be set down for oral argument on this court's first available calendar after the appeal is perfected. The appeal is dismissed without prejudice. [fn1] However, nowhere in the record does he claim that he did not receive such notice.

[fn2] The Division, however, disputed that account, countering that L.R.N. had been seen by a Division caseworker on July 29, 1999 at which time T.R. is purported to have stated that he had forgotten about the court date.

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ROSA v. ARAUJO, 260 N.J. Super. 458 (1992)
ROSA v. ARAUJO, 260 N.J. Super. 458 (1992) 616 A.2d 1328 ARTHUR ROSA, PLAINTIFF-RESPONDENT, v. ANTONIO ARAUJO, DEFENDANT-APPELLANT, AND RICHARD GOMES AND AUGUSTO GOMES, DEFENDANTS. Superior Court of New Jersey, Appellate Division. Submitted October 26, 1992 — Decided November 30, 1992.

Appeal from The Superior Court, Essex County, Law Division. Page 459 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] Page 460 Before Judges PETRELLA, LONG and KEEFE. Anthony Cabelo, attorney for appellant. Jeffrey D. Marshall, attorney for respondent. The opinion of the court was delivered by KEEFE, J.A.D. Defendant Antonio Araujo appeals from the denial of his motion to vacate a default judgment entered against him by the Clerk of the Superior Court on July 10, 1990 in the sum of $32,838.56 plus costs. We affirm. Page 461 The complaint against Araujo and others was filed on May 25, 1990. The return of service stated that service was made upon him on June 4, 1990 at his usual place of abode, 304 Ridge Street, Newark, New Jersey, by leaving a copy thereof, together with a copy of the complaint and notice of lis pendens with a competent female member of his household of the age of 14 years or over, then residing therein Alexandra Solano, M.O.H.[fn1] No answer having been received from Araujo, plaintiff's attorney filed a request to enter default judgment, an affidavit of proof, and an affidavit of non-military service with the Clerk of the Court on July 9, 1990. A default judgment was subsequently entered by the Clerk on July 10, 1990. On July 12, 1991 a motion to vacate the judgment was filed by

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an attorney other than the one now representing Araujo. The ground upon which the motion was made was "excusable neglect." See R. 4:50-1(a). The motion was supported by a certification signed by Araujo in which he essentially contended that the debt had been paid. The certification did not inform the court why an answer to the complaint had not been filed. The motion resulted in an order issued on August 9, 1991, denying the relief requested. No appeal was taken from that order. On November 27, 1991 defendant's current attorney filed another motion to vacate the July 10, 1990 default judgment. For the first time, Araujo contended that he was not served in accordance with the provisions of R. 4:4-4(a)(1). He also contended for the first time that the affidavit of proof upon which the judgment was entered was "not legally sufficient pursuant to R. 4:43-2," and that an affidavit of non-military service was not filed pursuant to R. 1:5-7. The motion was accompanied by the certifications of Araujo, his current attorney, the sheriff's officer who effected the service, Alexandra Solano and Jack J. Soriano, the attorney who represented Araujo when suit was Page 462 instituted. The motion was heard on the papers and resulted in the entry of the order from which Araujo now appeals. On appeal, Araujo contends that the trial judge erred because: 1) the default judgment entered against him was void for lack of in personam jurisdiction; 2) the affidavit of proof in support of the default judgment was insufficient under the rule; 3) the trial judge should have exercised the broad discretion afforded by the provisions of R. 4:50-1(f) to vacate the judgment; and 4) plaintiff's failure to file a certification addressing the merits of the underlying claim was an improper response to the merits of the motion. Initially, we observe that the denial of Araujo's first motion to vacate the default judgment was a final order from which defendant had the right to appeal. See Haber v. Haber, 253 N.J. Super. 413, 601 A.2d 1199 (App.Div. 1992). Defendant's attempt to relitigate the same issue under R. 4:50-1 by simply raising different arguments arising out of the same facts would ordinarily be precluded on principles of finality. However, because this appeal raises a facial question of due process relative to the court's jurisdiction over the defendant, we will address that issue on its merits. We accept for the purpose of this opinion, that Alexandra Solano was not a member of the defendant's household on the date service was effected by the sheriff's officer. Thus, service was not made in accordance with the provisions of R. 4:4-4(a)(1). Generally, where a default judgment is taken in the face of defective personal service, the judgment is void. See Garza v. Paone, 44 N.J. Super. 553, 131 A.2d 32 (App.Div. 1957). However, not every defect in the manner in which process is served renders the judgment upon which the action is brought void and unenforceable. See DeGroot v. Camarota, 169 N.J. Super. 338, 404 A.2d 1211 (App.Div. 1979). The requirement that a court have personal jurisdiction over a defendant is designed to

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protect the defendant's individual liberty interest flowing from the Due Process clause. Insurance Corp. v. Page 463 Compagnie des Bauxites, 456 U.S. 694, 702, 102 S.Ct. 2099, 2104, 72 L.Ed.2d 492, 501 (1982). Thus, the court rules which describe the manner in which process is to be served must be read in the context of effecting due process. In recognition of that concept our Supreme Court in O'Connor v. Abraham Altus, 67 N.J. 106, 126, 335 A.2d 545 (1975) stated: "An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." [quoting Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 657, 94 L.Ed. 865, 873 (1950).] Where due process has been afforded a litigant, technical violations of the rule concerning service of process do not defeat the court's jurisdiction. Id. 67 N.J. at 127-28, 335 A.2d 545. An examination of the facts of this case in a light most favorable to defendant reveals that due process considerations have been fully met. Regardless of the fact that Ms. Solano was not the appropriate person to receive service of process on behalf of defendant, defendant's certification as well as his first attorney's certification reveal that he received the summons and complaint, and turned it over to his attorney before the default judgment was entered. Indeed, Mr. Soriano's letter to plaintiff's attorney on July 5, 1990 requested an extension of time to serve an answer to the complaint. Soriano's certification does not reveal whether the extension was signed and returned, nor does it explain why an answer was never filed. However, the absence of that explanation is not relevant to the question of due process. The fact of the matter is that defendant concededly received the summons and complaint prior to the entry of default judgment, was aware of the nature of the lawsuit, and turned the matter over to an attorney for representation. Thus, service was made on the defendant in a manner that satisfied due process. See, DeGroot, supra, 169 N.J. Super. at 342, 404 A.2d 1211. Page 464 Further, since the requirement of personal jurisdiction is an individual right, "it can, like other such rights, be waived[,]" and may also be "subject to certain procedural rules [to the end that] failure to follow those rules may well result in a curtailment of the rights." Insurance Corp., supra, 456 U.S. at 705, 102 S.Ct. at 2105, 72 L.Ed.2d at 502. Because defendant received the summons and complaint in this matter and presented it to an attorney for representation before the default judgment was taken against him and during the period of time in which an answer could have been filed, see R. 4:6-1(c), he was

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required to raise the defense of lack of jurisdiction over his person by motion before answering, or in his answer and then by motion within 90 days after service of the answer. R. 4:6-2, and R. 4:6-3. His failure to do so resulted in a waiver of any such objection. R. 4:6-7. The use of such procedural rules to effect a waiver of an individual right grounded in the Constitution "does not in itself violate the defendant's due process rights." Insurance Corp., supra, 456 U.S. at 707, 102 S.Ct. at 2106, 72 L.Ed.2d at 504. Affirmed. [fn1] The letters M.O.H. are an abbreviation for the phrase, "member of his household."

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RULE 4:33. INTERVENTION RULE 4:33. INTERVENTION 4:33-1. Intervention as of Right Upon timely application anyone shall be permitted to intervene in an action if the applicant claims an interest relating to the property or transaction which is the subject of the action and is so situated that the disposition of the action may as a practical matter impair or impede the ability to protect that interest, unless the applicant's interest is adequately represented by existing parties. Note: Source-R.R. 4:37-1; amended July 13, 1994 to be effective September 1, 1994. 4:33-2. Permissive Intervention Upon timely application anyone may be permitted to intervene in an action if the claim or defense and the main action have a question of law or fact in common. When a party to an action relies for ground of claim or defense upon any statute or executive order administered by a state or federal governmental agency or officer, or upon any regulation, order, requirement or agreement issued or made pursuant to the statute or executive order, the agency or officer upon timely application may be permitted to intervene in the action. In exercising its discretion the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties. Note: Source-R.R. 4:37-3; amended July 13, 1994 to be effective September 1, 1994. 4:33-3. Procedure A person desiring to intervene shall file and serve on all parties a motion to intervene stating the grounds therefor and accompanied by a pleading setting forth the claim or defense for which intervention is sought. Note: Source-R.R. 4:37-4.

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