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Bolen v. O'Brien

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


November 7, 2007

KIMBERLY BOLEN, F/K/A KIMBERLY O'BRIEN, PLAINTIFF-APPELLANT,
v.
WILLIAM O'BRIEN, DEFENDANT-RESPONDENT.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Sussex County, Docket No. FM-19-175-98.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 22, 2007

Before Judges Parrillo and Graves.

This is a post-judgment matrimonial matter. On March 14, 2000, the parties were divorced and the terms of a settlement agreement were placed on the record. A property settlement agreement (PSA) was subsequently signed by the parties. The parties have two sons: one is now fourteen years old, and the other is eleven. Plaintiff Kimberly Bolen appeals from an order dated May 25, 2006, that denied her request to "uphold and enforce" the parties' PSA, which designated her as the primary residential parent.

On appeal, plaintiff presents the following arguments:

POINT I

THE TRIAL COURT ERRED WHEN THE JUDGE DENIED APPELLANT THE OPPORTUNITY TO BE HEARD PURSUANT TO R. 1:6-2(d).

POINT II

THE TRIAL COURT ERRED BECAUSE THE FINDINGS OF FACT AND CONCLUSIONS OF LAW WERE NOT ENTERED ON THE RECORD.

POINT III

THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT'S REQUEST TO MODIFY THE ORDER AS TO THE COURT APPOINT[ED] EXPERT.

After reviewing the record and the applicable law in light of the contentions advanced on appeal, we conclude that plaintiff's arguments do not warrant extensive discussion. R. 2:11-3(e)(1)(E). We add only the following comments.

On November 8, 2001, Judge Russell entered an order granting temporary custody of the children to defendant. On December 1, 2005, Judge James A. Farber entered an order granting "sole legal and physical custody" to defendant, William O'Brien. In a thorough and thoughtful thirty-seven-page written decision, Judge Farber examined each of the fourteen statutory custody factors, N.J.S.A. 9:2-4(c), and determined plaintiff's time with her children should be limited to "therapeutic supervised parenting by Dr. Amie Wolf-Mehlman." Judge Farber's findings included the following: (1) plaintiff unilaterally moved and attempted to relocate the children three hours away from defendant; (2) plaintiff enlisted one of the children to file a false report with the police alleging that defendant struck him with a baseball bat; (3) plaintiff's testimony was often inconsistent, confusing, and "simply unbelievable"; (4) plaintiff "has been unable to agree, communicate and cooperate [with defendant] in matters relating to the children"; (5) plaintiff has a history of drug use, which resulted in a consent order in August 1990 that suspended her nursing license for a two-year period and a subsequent consent order that "permitted her only to work in approved capacities . . . without clinical responsibilities and without access to narcotic substances or other mood altering substances" between April 9, 2001, and April 9, 2006.

For the reasons detailed in his comprehensive written decision, Judge Farber concluded that plaintiff's "current parenting must be limited to therapeutic supervised parenting by Dr. Amie Wolf-Mehlman." Thus, plaintiff's post-judgment application to enforce the PSA, which was heard by Judge Gannon on May 24, 2006, was, for the most part, an effort to either vacate or modify the December 1, 2005, order entered by Judge Farber.

We are satisfied from our review of the record that there was no abuse of discretion or reversible error when the court allotted plaintiff six minutes for oral argument. Plaintiff's response to the time limitation was as follows:

Well, I'll save your time, because I know you have a lot outside.

I'll stand on my papers and the documentation presented. And what I'm requesting is an order -- I'm asking actually to get a court to uphold and enforce the property settlement agreement reached between Bill and I in 1998, and recurring in 2000/2001, as well as the children's right to contact [me] at their discretion, which was provided [to] them on September 7th[, 2001] by Judge Miniman.

The amount of time allotted for oral argument is generally left to the sound discretion of the court. See Murin v. Frapaul Constr. Co., 240 N.J. Super. 600, 613 (App. Div. 1990) (holding twenty minute limitation on summations following jury trial was sufficient); State v. Tilghman, 385 N.J. Super. 45, 53-54 (App. Div.), certif. granted, remanded for resentencing by, 188 N.J. 269 (2006) (citing R. 1:1-2 and noting New Jersey's "longstanding tradition" of allowing courts broad discretion over procedural matters, such as time limitations on counsels' arguments); see also Sullivan v. State, 46 N.J.L. 446, 448 (Sup. Ct. 1884) ("It is essential that there should be some limitation other than the caprice of the speaker to prevent an unreasonable consumption of public time and delay in the transaction of the business of the courts, and inconvenience and expense to waiting suitors and counsel."), aff'd, 47 N.J.L. 151 (E. & A. 1885). In the present matter, it is clear the motion judge had thoroughly reviewed the written submissions prior to oral argument, and the time limitation, which was not unduly restrictive, did not prejudice plaintiff's right to a fair hearing.

With respect to plaintiff's request to either vacate or modify the custody and supervised visitation order entered on December 1, 2005, the motion judge noted that there was no report from Dr. Wolf-Mehlman regarding the status of supervised therapeutic visitation, and the court specifically authorized plaintiff to obtain a report which "may include Dr. Wolf-Mehlman's recommendations, if any, as to future visitation with the plaintiff." The court also provided the following explanation for denying plaintiff's application:

Most of the documentation which has been submitted on this application is simply a rehash of old orders and much of which has really nothing to do with that which is contained in the order that was entered by Judge Farber on December 1st, 2005.

Accordingly, I'm satisfied . . . that the plaintiff is not entitled to any relief here, and that no relief will be granted. And that the application for modification of that prior order as set forth in this application is denied.

At some time in the future when . . . there is an appropriate passage of time and a report from Dr. Wolf-Me[h]lman, you may reapply again in accordance with the terms of Judge Farber's decision.

Oh, by the way, I just want to address one other thing.

You do have every right to represent yourself in connection with any matter that you want to present to the [c]court.

MS. BOLEN: Yes sir.

THE COURT: But the papers that you submitted . . . were quite voluminous and unnecessary. And I just want to point out that even though you're pro se, you do have to abide by the Rules of Court, which have very specific rules about the number of papers that can be submitted on an application. And needless to say, it's not really productive for me to get all of these documents, which don't really relate to what you're seeking.

Notwithstanding plaintiff's "voluminous" submission to the trial court, the record on appeal does not substantiate plaintiff's claim that the court erred when it denied her motion. See Soc'y Hill Condo. Ass'n v. Soc'y Hill Assocs., 347 N.J. Super. 163, 177 (App. Div. 2002) (noting that appellate review was not possible where appendix filed by appealing party failed to include "notice of motion filed in the trial court and whatever papers were submitted in support thereof"). Thus, based on the record before us, we perceive no flaw in Judge Gannon's findings and conclusions, and no justifiable reason for interfering with his decision to deny plaintiff's motion. Cesare v. Cesare, 154 N.J. 394, 412-13 (1998).

Affirmed.

20071107

© 1992-2007 VersusLaw Inc.



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