September 21, 2007
EVAN A. JONES, PLAINTIFF-APPELLANT,
LAURI A. JONES, DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Sussex County, FM-19-175-01.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 11, 2007
Before Judges Wefing, R. B. Coleman and Lyons.
Plaintiff, Evan A. Jones, appeals from a January 11, 2006 order from Judge Edward V. Gannon of the Superior Court, Sussex County, Chancery Division, Family Part, denying plaintiff's motion and cross-motion for post-judgment relief. The trial court held that plaintiff was in violation of a Judgment of Divorce as entered by Judge James A. Farber on May 27, 2003. The court denied plaintiff's cross-motion because his applications had been previously decided in a six-day bench trial in 2002 before Judge Farber. Judge Gannon would not allow plaintiff "to relitigate these issues several of which were the subject of Appellate Division review" in Jones v. Jones, No. A-5903-02T2 (App. Div. October 29, 2004).
In such divorce proceedings, this court is bound to give deference to the trial court's findings of fact and conclusions of law, which will only be disturbed if they are "manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974) (citation and internal quotation omitted). "The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). We find that credible evidence existed to support the trial court's ruling.
On appeal, plaintiff now argues that he should be granted relief from the final judgment because defendant Lauri A. Jones suppressed evidence at trial. A court may grant such relief for the following reasons:
(a) mistake, inadvertence, surprise, or excusable neglect; (b) newly discovered evidence which would probably alter the judgment or order and which by due diligence could not have been discovered in time to move for a new trial under R. 4:49; (c) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (d) the judgment or order is void; (e) the judgment or order has been satisfied, released or discharged . . . or (f) any other reason justifying relief from the operation of the judgment or order.
Relief may be granted under R. 4:50-1 only upon a showing of exceptional circumstances. Baumann v. Marinaro, 95 N.J. 380, 393 (1984). Vacating or setting aside "a final judgment is a matter that lies within the sound discretion of the trial court." Resolution Trust Corp. v. Associated Gulf Contractors, Inc., 263 N.J. Super. 332, 340 (App. Div. 1993) (citing Hodgson v. Applegate, 31 N.J. 29, 37 (1959); Shammas v. Shammas, 9 N.J. 321, 328 (1952)). Regardless of the basis, a motion to vacate a judgment under R. 4:50-1 is granted sparingly. Hous. Auth. of Morristown v. Little, 135 N.J. 274, 289 (1994).
The defendant's motion regarding R. 4:50-1(a), (b), and (c) is clearly time barred. A motion praying for relief under this rule, "shall be made within a reasonable time, and for reasons (a), (b), and (c) of R. 4:50-1 not more than one year after the judgment, order or proceeding was entered or taken." R. 4:50-2. Judge Farber's decision was filed on May 27, 2003. Plaintiff did not file his original pro se motion for relief until January 6, 2005. His motion and his cross-motion were both filed well outside the parameters set forth in R. 4:50-1, and therefore were properly denied as untimely.
Plaintiff's motion for relief under R. 4:50-1(f) is not extinguished by any time restriction, however, under this so-called catchall provision "[r]elief is not available absent exceptional and compelling circumstances." Connor v. Connor, 254 N.J. Super. 591, 610 (App. Div. 1992) (citing Baumann, supra, 95 N.J. at 392); see Castiglioni v. Castiglioni, 192 N.J. Super. 594, 597 (Ch. Div. 1984) (finding that relief will only be granted where "enforcement of the judgment would be unjust, oppressive or inequitable"). No such showing was made in this case.
The parties engaged in an exhaustive litigation in which both had ample opportunity to obtain any and all records prior to trial. Plaintiff now claims that the defendant maliciously hid bank account records both from the court and from him. The record discloses that, even though plaintiff did not have possession of these records, he had knowledge of their existence. If the plaintiff had exercised any degree of due diligence, those records could have been produced at trial. Therefore, we find that the plaintiff's situation falls far short of the exceptional or compelling circumstances necessary to be granted relief under R. 4:50-1(f).
Plaintiff also requested ancillary relief under R. 4:50-1 for a hearing regarding the impact of defendant's alleged cohabitation and disparate appraisals of the couple's Vermont timeshare. At oral argument, counsel advised the panel that the controversy concerning defendant's alleged cohabitation is now moot. We are satisfied that Judge Gannon appropriately exercised his discretion to enforce the prior orders of the court that stated that the timeshare management company would determine the value of the timeshare. There was no evidence presented that the differing values assigned by the management company at different times were rendered in anything but good faith.
Likewise, Judge Farber had addressed the method by which the parties were to allocate the personal assets in his May 27, 2003 decision. Judge Gannon determined that plaintiff never complied with that order, and that plaintiff, instead asked the court to award him specific items of personal property. Judge Gannon properly denied plaintiff's attempt to disregard Judge Farber's order. We will not disturb that ruling.
Finally, in regard to the plaintiff's request for attorney's fees, we do not find sufficient merit in this claim to warrant discussion in a written opinion. R. 2:11-3(1)(E). We only comment that plaintiff has not prevailed on the issues he raised. Nothing suggests plaintiff cannot and should not bear his own legal fees and costs.
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