NDEYE SENE EP NDIAYE VS. MOUHAMADOU A. NDIAYE (FM-09-0303-19, HUDSON COUNTY AND STATEWIDE) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE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-0630-19T2
NDEYE SENE EP NDIAYE
Plaintiff-Respondent,
v.
MOUHAMADOU A. NDIAYE,
Defendant-Appellant.
__________________________
Argued August 25, 2020 – Decided December 2, 2020
Before Judges Geiger and Mitterhoff.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Hudson County,
Docket No. FM-09-0303-19.
Mouhamadou A. Ndiaye, appellant, argued the cause
pro se.
Ndeye Sene Ep Ndiaye, respondent, argued the cause
pro se.
PER CURIAM
In this dissolution matter, defendant Mouhamadou Ndiaye appeals from a
Family Part judge's August 30, 2019 order denying his motions for
reconsideration and her September 16, 2019 entry of a final judgment of divorce
(FJOD) by default. Defendant alleges an outstanding complaint for divorce in
Senegal predated the instant action, depriving the New Jersey courts of
jurisdiction, and necessitating reversal. In addition, he alleges that the entry of
the FJOD was procedurally deficient because he did not receive the required
notice under Rule 5:5-10. Having reviewed the record and applicable law, we
affirm.
We discern the following facts from the record. The parties were married
on July 30, 2010, in Senegal. In October 2011, the couple moved to New Jersey.
One child was born during the marriage on September 28, 2012. 1 The parties
lived together until defendant relocated to Massachusetts in 2016. 2 Defendant
filed a complaint for divorce in Senegal in 2016, which was dismissed on or
1
The child resides in Senegal with plaintiff's sister. She is not in the custody
of either party and is outside the jurisdiction of this court. No issues of custody
are involved in the underlying action.
2
Plaintiff initially filed an application for spousal support in 2016, but withdrew
it prior to disposition of the dissolution action.
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about June 14, 2017, for lack of jurisdiction. Plaintiff filed the instant complaint
seeking dissolution of the marriage on July 26, 2018.
On October 29, 2018, plaintiff filed a motion for substituted service via
certified mail pursuant to R. 5.5-4(b). On January 11, 2019, the judge denied
the motion finding plaintiff had not made adequate diligent inquiry into
defendant's address as required by R. 5:4-4(c)(1)-(2). On May 2, 2019, the judge
granted plaintiff's motion to effect substituted service by publication. On May
17, 2019, plaintiff filed a request for entry of default supported by an affidavit
of service by publication, and the judge set a default hearing for June 28, 2019.
On June 27, 2019, a day before the scheduled default hearing, defendant
filed a motion to dismiss plaintiff's complaint claiming the court lacked
jurisdiction due to the pending Senegalese action. Attached to defendant's
motion was a summons from a Senegalese court that provided notice of a court
date on June 3, 2019. It did not include a certification as to when the complaint
for divorce was filed, it did not include a copy of the alleged complain t, and it
did not include a certification authenticating the summons' translation. On June
28, 2019, the judge directed plaintiff to file a cross-motion or opposition to the
motion to dismiss by July 8, 2019, and ordered defendant to reply by July 10,
2019.
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On July 5, 2019, plaintiff attempted to file her opposition at the Hudson
County courthouse but was unable to do so due to a court closure. 3 Plaintiff
mailed her opposition to defendant and the court. Defendant received plaintiff's
opposition at 3:04 p.m. on July 11, 2019, while the court received it at 11:27
a.m. on July 10, 2019. 4 On July 12, 2019, the court received a letter from
plaintiff explaining she had attempted to file her opposition on July 5, 2019, but
could not because the courthouse was closed, so she mailed her opposing papers.
Attached to plaintiff's opposition was an order issued by a Senegalese court
dismissing the Senegalese complaint for lack of jurisdiction.5
Defendant replied on July 12, 2019, arguing the judge should consider his
motion unopposed because plaintiff failed to timely file her opposition and
because the opposition contained formatting deficiencies. On July 18, 2019, the
trial judge denied defendant's motion to dismiss the complaint, vacated default
against defendant, and directed defendant to file an answer by August 2, 2019. 6
3
Plaintiff had mislabeled her opposition as a cross-motion.
4
Defendant and the court's receipt of plaintiff's opposition papers are confirmed
by USPS and UPS tracking numbers.
5
The Senegalese order was not accompanied by a certification of translation.
6
The judge later extended the deadline to answer the complaint to August 9,
2019, at defendant's request.
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By August 12, 2019, because defendant had not filed an answer, plaintiff
renewed her request to enter default judgment. On August 30, 2019, the judge
denied both of defendant's motions to reconsider, and on September 16, 2019,
she issued a FJOD by default.
On appeal, defendant presents the following points for our review:
POINT I
THE TRIAL COURT ERRED BOTH BY
ACCEPTING BOTH OF THE PLAINTIFF'S LATE
FILINGS OVER OUR OBJECTIONS AND BY NOT
NOTIFYING THE DEFENDANT (OR COUNSEL)
AFTER NUMEROUS WRITTEN OBJECTIONS
SENT TO THE COURT
POINT II
THE TRIAL COURT ERRED BY DENYING THE
DEFENDANT HIS DUE PROCESS AND THE RIGHT
TO OPPOSE THE PLAINTIFF'S FILINGS
POINT III
THE TRIAL COURT ERRED BY FORCING
DEFENDANT TO FILE AN ANSWER AND SUBMIT
TO THE TRIAL COURT'S JURISDICTION ABSENT
AN OPPORTUNITY TO BE HEARD ON THE
MERITS OF HIS MOTION
POINT IV
THE TRIAL COURT ERRED BY DENYING
DEFENDANT['S] MOTIONS TO DISMISS
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POINT V
THE TRIAL COURT ERRED BY ENTERING A
FINAL JUDGMENT OF DIVORCE WITHOUT
NOTICE TO THE DEFENDANT (OR COUNSEL)
We find defendant's arguments to be without merit and affirm,
substantially for the reasons set forth by the trial court on the record on August
30, 2019, adding only the following brief remarks.
On review of Family Part cases, we accord deference to the judge's fact-
finding because of "the family courts' special jurisdiction and expertise in family
matters[.]" Cesare v. Cesare, 154 N.J. 394, 413 (1998). Such findings "are
binding on appeal when supported by adequate, substantial, credible evidence."
Id. at 411-12. We will reverse only if those findings "are so manifestly
unsupported by or inconsistent with the competent, relevant and reasonably
credible evidence as to offend the interests of justice." Id. at 412 (quoting Rova
Farms Resort, Inc. v. Inv'rs Ins. Co. of Am., 65 N.J. 474, 484 (1974)). However,
we afford no deference to the judge's interpretation of the law. D.W. v. R.W.,
212 N.J. 232, 245 (2012).
Contrary to defendant's argument, there is simply no question that the
Family Part had jurisdiction over this dissolution matter concerning two
individuals who resided in New Jersey for the better part of the marriage, and
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where plaintiff continues to reside. N.J.S.A. 2A:34-8. We reject, as did the trial
judge, defendant's assertion that the Senegalese action, which was dismissed for
lack of jurisdiction, defeated jurisdiction in this State. See Sensient Colors, Inc.
v. Allstate Ins. Co., 193 N.J. 373, 386-87 (2008). In that regard, defendant
presented no evidence sufficient to establish the jurisdiction of Senegalese
courts over the dissolution of the parties' marriage. The Senegalese summons
defendant relies upon was translated but was not authenticated by a certification
of translation; it did not include information necessary to prove the Senegalese
complaint preceded this one; nor did it establish substantial similarity with the
present litigation.
We also reject defendant's argument that he was not afforded due process
because it was error to accept plaintiff's late filed opposition. Rule 1:1-2
provides in relevant part: "Unless otherwise stated, any rule may be relaxed or
dispensed with by the court in which the action is pending if adherence to it
would result in an injustice. In the absence of rule, the court may proceed in
any manner compatible with these purposes . . . ". Rule 1:6-3 prescribes a time
frame for filing and serving motion papers. All periods prescribed by the rule,
however, are subject to relaxation on court order when failure to doing so would
deprive a litigant of procedural due process. See Rubin v. Rubin, 188 N.J. Super.
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155, 158-59 (App. Div. 1982). See also Tyler v. New Jersey Auto. Full Ins.
Underwriting Ass'n, 228 N.J. Super. 463, 468 (App. Div. 1988) ("It 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
. . ."). In light of plaintiff's good-faith efforts to comply with filing deadlines
throughout this case's protracted motion practice, and for the reasons set forth
during the August 30, 2019 hearing, we are satisfied the trial judge's decision to
accept plaintiff's late filed opposition was not an abuse of discretion. See Tyler,
228 N.J. Super. at 468.
Finally, we reject defendant's argument that notice was required before
the final judgment of divorce was entered. Rule 5:5-10 provides, in relevant
part:
In those cases where equitable distribution, alimony,
child support and other relief are sought and a default
has been entered, the plaintiff shall file and serve on the
defaulting party, in accordance with R. 1:5-2, a Notice
of Proposed Final Judgment ("Notice"), not less than 20
days prior to the hearing date.
The purpose of the notice provisions embodied in Rule 5:5-10 is to avoid
problems "proving the identity and value of distributable assets or in the court's
power to enter a judgment of distribution" because "the complaint . . . typically
allege[s] only that assets were acquired during the marriage and should be
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equitably distributed without any specification of the assets or their value."
Pressler & Verniero, Current N.J. Court Rules, cmt. 1 on R. 5:5-10 (2021).
"[W]here no equitable distribution is sought, there is clearly no problem either
in proving the identity and value of distributable assets or in the court's power
to enter a judgment of distribution." Id.
Here, the only relief plaintiff requested of the court was a final judgment
of divorce. She did not seek equitable distribution of marital assets, alimony,
child support, or a parenting time arrangement. Therefore, defendant was not
entitled to notice under Rule 5:5-10.
To the extent we have not specifically addressed any of defendant's
remaining arguments, we conclude they lack sufficient merit to warrant
discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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