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March 3, 2026 Get Citation Alerts Download PDF Add Note

Ardist Rivers v. Patricia Person

New Jersey Superior Court Appellate Division

• Citations: None known
• Docket Number: A-2703-24

• Precedential Status: Non-Precedential

• Opinion

• Authorities (17)

• Cited By (0)

• Summaries (0)

• Similar Cases (5.7K)

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Combined Opinion

NOT FOR PUBLICATION WITHOUT THE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-2703-24

ARDIST RIVERS,

Plaintiff-Respondent,

v.

PATRICIA PERSON and
FRANK J. PERSON,

Defendants-Appellants.

---

Submitted January 26, 2026 – Decided March 3, 2026

Before Judges Sabatino and Bergman.

On appeal from the Superior Court of New Jersey,
Chancery Division, Union County, Docket No.
C-000064-24.

Hoffman & Hoffman, attorneys for appellants (Gary D.
Hoffman and Brian L. Hoffman, on the brief).

Respondent has not filed a brief.

PER CURIAM
In this one-sided appeal, defendants Patricia Person and Frank J. Person

contest an April 17, 2025 order of the Chancery Division denying their motion

to vacate a default judgment entered against them. The underlying judgment

ordered partition and sale of their residential property owned by them and

plaintiff Ardist Rivers as tenants in common, appointed plaintiff as attorney in

fact to list the property for sale and directed the proceeds be divided equally.

Having considered the record, defendants' arguments and the applicable legal

principles, we reverse and remand for further proceedings consistent with this

opinion.

I.

This dispute concerns a two-unit residential property in Rahway originally

purchased in 1968 by the defendants and Leroy and Lillie Mae Rivers as tenants

in common. The property is a two-unit residential building with one central

common adjoining wall and shared front and rear common spaces. Over nearly

six decades, defendants have maintained possession of one unit, while the

Rivers' possessed the other. During this time period, defendants assert no

disputes arose with the Rivers, including both paying separately metered utility

costs and sharing in other costs on an equal basis, including property taxes.

After Leroy passed away in 1994, and the subsequent passing of Lillie Mae in

A-2703-24
2
2011, plaintiff acquired his mother's one-half interest by deed in 2021 through

her estate. It is undisputed that plaintiff and defendants each own their

respective units and the property as a whole as tenants in common.

On July 22, 2024, plaintiff filed a complaint seeking partition and sale of

the property. Default judgment was entered on February 28, 2025, ordering a

partition and sale of the property, appointing plaintiff as attorney in fact to list

the property and ordering the proceeds of sale to be divided equally between the

parties. Defendants assert they only learned of the judgment through notice

from their tenant, immediately retained counsel and moved to vacate the default

judgment approximately 26 days later on March 26. Defendants alleged they

did not recall receiving the complaint, did not respond timely to the complaint

or attend the proof hearing ordered due to their advanced age and infirmities.

Following oral argument defendants' motion was denied. In its oral

decision, the court found no "undue hardship" was shown by defendants, noted

that defendants were properly served according to certifications of service

provided by plaintiff and found no excusable neglect for defendants' failure to

respond. The court found "perhaps [there was] a lack of memory" but

determined the lack of memory or ill health of defendants did not constitute good

cause, mistake, or excusable neglect sufficient to vacate the judgment under

A-2703-24
3
Rule 4:50-1. The court also found it did not "see any meritorious defense . . .

[and] the parties cannot get along, which is why there's normally a basis for a

partition under the rules when the property is co-owned."

The court also concluded there were no exceptional circumstances

warranting relief from the judgment. The order further permitted defendants to

inspect plaintiff's portion of the property to determine if a buyout amount could

be agreed upon, which did not come to fruition. The trial court granted

defendants' motion to stay the judgment pending appeal by consent of the

parties.

On appeal, defendants contend the trial court erred in denying their motion

to vacate the default judgment, specifically asserting the court failed to liberally

apply Rule 4:50-1(a), which permits a court to vacate default judgments for

mistake, inadvertence, surprise, or excusable neglect. Defendants, citing to their

advanced ages—now 85 and 86 years old—and significant infirmities, assert the

situation warranted special consideration under both the rule and various statutes

intended to protect the elderly from legal and financial harm. They emphasize

the almost immediate filing of their motion after discovering the judgment

against them, and argue had they been properly heard, they would have prevailed

on the merits given their status as tenants in common. They argue, as tenants in

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common, plaintiff had the legal ability to sell his portion of the property without

forcing the defendants' half to be sold, and alternatively, that their long-term

improvements to the property entitles them to a larger share of the sale proceeds.

II.

The law concerning the vacation of a default judgment is well settled. A

motion to vacate a default judgment pursuant Rule 4:50-1(a) must be brought

"within a reasonable time" but not later than one year after judgment. R. 4:50-

1. Although not expressly included in the Rule, our common law requires a

defendant claiming excusable neglect must also demonstrate a meritorious

defense. Marder v. Realty Constr. Co., 84 N.J. Super. 313, 318 (App. Div.

1964), aff'd, 43 N.J. 508 (1964). A court is required to "examine defendant's

proposed defense to determine its merit." Bank of N.J. v. Pulini, 194 N.J. Super.

163, 166 (App. Div. 1984).

"A court should view 'the opening of default judgments . . . with great

liberality,' and should tolerate 'every reasonable ground for indulgence . . . to

the end that a just result is reached.'" Mancini v. EDS ex rel. N.J. Auto. Full

Ins. Underwriting Ass'n, 132 N.J. 330, 334 (1993) (omissions in original)

(quoting Marder, 84 N.J. Super. at 319). "All doubts . . . should be resolved in

favor of the parties seeking relief." Ibid. That is so, because of the importance

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we attach to securing a decision on the merits. Davis v. DND/Fidoreo, Inc., 317

N.J. Super. 92, 100-01 (App. Div. 1998).

Our courts have also recognized that a defendant's promptness in moving

to vacate a default judgment is a factor that supports granting the motion. Reg'l

Constr. Corp. v. Ray, 364 N.J. Super. 534, 541 (App. Div. 2003) (affirming a

finding of excusable neglect "when examined against the very short time period

between the entry of default judgment and the motion to vacate"); Jameson v.

Great Atl. & Pac. Tea Co., 363 N.J. Super. 419, 428 (App. Div. 2003) (noting

the "speed and diligence with which [the party] moved to attempt to vacate the

default judgment"). "[W]here the judgment has been in effect for only a brief

period of time before the motion to vacate is filed[,] . . . a plaintiff's expectations

regarding the legitimacy of the judgment and the court's interest in the finality

of judgments are at their nadir." Reg'l Constr. Corp., 364 N.J. Super. at 545.

Prejudice to the plaintiff if default judgment is vacated is also a relevant

consideration. In this regard, Rule 4:50-1 permits the court to condition an order

vacating default judgment "upon such terms as are just." Any relief granted

under this provision of the Rule must be "reasonably proportionate to the

prejudice suffered by plaintiff." Reg'l Constr. Corp., 364 N.J. Super. at 543. A

court may compel a party seeking to vacate default to reimburse the judgment

A-2703-24
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holder for the fees and costs "in the pursuit of the default judgment or in

responding to the motion to vacate." Ibid.

The decision whether to grant a motion to vacate a default judgment is

generally "left to the sound discretion of the trial court and will not be disturbed

absent an abuse of discretion." Mancini, 132 N.J. at334. "The [Rule] is designed

to reconcile the strong interests in finality of judgments and judicial efficiency

with the equitable notion that courts should have authority to avoid an unjust

result in any given case." Manning Eng'g, Inc. v. Hudson Cnty. Park Comm'n,

74 N.J. 113, 120 (1977). That said, we have occasionally set aside orders

denying relief requested under section (a) of the Rule when the circumstances

warranted. See, e.g. Professional Stone, Stucco and Siding Applicators, Inc. v.

Carter, 409 N.J. Super. 64 (App. Div. 2009); Allen v. Heritage Court Associates,

325 N.J. Super. 112 (App. Div. 1999); Febus v. Barot, 260 N.J. Super. 322 (App.

Div. 1992).

The record reflects defendants initially moved to vacate the default

judgment less than thirty days after it was entered, which we determine to be a

reasonable period of time. In addition, defendants are of advanced age, and as

the record shows, Mr. Person alleged he experienced severe medical issues and

was hospitalized for over a month and thereafter, was placed into a rehabilitation

A-2703-24
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facility for approximately three months. Defendants also asserted Mr. Person's

nieces traveled about an hour each way twice per week to obtain his mail from

his neighbors while he was hospitalized but never received the plaintiff's initial

complaint. Although there is an affidavit from a sheriff's officer attesting that

Mr. Person was served personally, he claimed he had no recollection of ever

being served. Similarly, Mrs. Person asserted, although she recalled signing

papers, she does not recall receiving any legal documents. Defendants both

claimed if they had received, or believed they had received any legal documents,

they would have notified their counsel and taken steps to respond.

We conclude, based on the promptness of defendants in moving to vacate

the judgment coupled with their asserted difficulties in responding due to their

age and infirmities, that sufficient credible evidence existed in the motion record

to support defendants' claim of excusable neglect pursuant to Rule 4:50-1(a).

We further determine defendants provided colorable and meritorious

claims and defenses in their motion to vacate. Under the relevant statute, "[t]he

superior court may, in an action for the partition of real estate, direct the sale

thereof if it appears that a partition thereof cannot be made without great

prejudice to the owners, or persons interested therein." N.J.S.A. 2A:56 -2

(emphasis added).

A-2703-24
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Partition is an equitable remedy allowing multiple parties to obtain an

order dividing property or compelling its sale. Newman v. Chase, 70 N.J. 254,

261 (1976); see also Greco v. Greco, 160 N.J. Super. 98, 101-02 (App. Div.

1978) (citing Newman, 70 N.J. at 263). Whether and how partition is ordered

is within the discretion of the court since "the statutory language is permissive

rather than mandatory." Greco, 160 N.J. Super. at 102 (quoting Newman, 70

N.J. at 263). A chancery court has broad discretion "to adapt equitable remedies

to the particular circumstances of a given case." Marioni v. Roxy Garments

Delivery Co. Inc., 417 N.J. Super. 269, 275 (App. Div. 2010) (citations omitted);

see also Salorio v. Glaser, 93 N.J. 447, 469 (1983) (noting equitable remedies

"are distinguished by their flexibility, their unlimited variety," and "their

adaptability to circumstances").

Defendants do not dispute the property is held by the parties as tenants in

common but assert separate units have been in existence for over fifty years,

each managed independently and, for the most part, have separate bills for costs,

including utilities. A tenancy in common is the "holding of an estate by different

persons, with a unity of possession and the right of each to occupy the whole in

common with the [other] . . . [and the] interest of a tenant in common may . . .

be transferred without the consent of the [other co-tenant]." Gonzalez v.

A-2703-24
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Wilshire Credit Corp., 207 N.J. 557, 564 n.2 (2011) (quoting Capital Fin. Co. of

Del. Valley, Inc. v. Asterbadi, 389 N.J. Super. 219, 225 (Ch. Div. 2006) (internal

citations omitted)).

Based on the parties ownership status and the history of separate

management and payment of expenses for each unit, we conclude defendants

asserted a meritorious legal position that, in this instance, a partition ordering

the sale of only plaintiff's ownership interest could be made without great

prejudice as permitted by N.J.S.A. 2A:56-2. We make no determination as to

the strength of this position or the ultimate outcome. We determine only that

defendants have asserted a meritorious and colorable defense to plaintiff's

requested relief that a sale and equal division of the proceeds is the only

appropriate relief.

In addition, defendants certified since becoming owners 57 years ago, they

have always meticulously maintained their unit in excellent condition, and also

have considerably improved it, thus increasing the total value of the property.

By contrast, they asserted plaintiff, who has only owned his half of the property

since 2021, has failed and refused to maintain his unit thus devaluing the

property to the defendants' detriment. Defendants also assert they have paid

plaintiff's portion of property taxes at some point and are due a credit from him.

A-2703-24
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Therefore, even if defendants' argument that a separate sale of plaintiff's

portion of the property is unsuccessful, we conclude they are entitled to a

vacation of the judgment to determine their claims requesting more than half of

the net sale proceeds. Defendants claim that the condition of their unit/half of

the property as compared to plaintiff's unit/half requires a greater award of the

proceeds to them, which they can prove at trial. They also claim entitlement to

credits from plaintiff for their payment of maintenance costs and property taxes.

When viewing defendants' motion with liberality, as we must, we

determine defendants satisfied the excusable neglect standard of Rule 4:50-1(a)

and provided a meritorious defense. Giving defendants "every reasonable

ground for indulgence" in order to ensure a just result is reached as well as

considering the importance our courts have attached to securing a decision on

the merits, we conclude the trial court misapplied its discretion in denying

defendants' motion under these circumstances.

We, therefore, reverse the trial court's order denying the defendants'

motion to vacate the judgment and remand the matter for the court to set a date

defendants' responsive pleading is due. On remand, we leave to the trial court's

discretion whether plaintiff was prejudiced due to defendants' delays and

whether reimbursement to plaintiff for the reasonable fees and costs he incurred

A-2703-24
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"in the pursuit of the default judgment or in responding to the motion to vacate ,"

is appropriate.

Reversed and remanded. We do not retain jurisdiction.

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