On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FV-02-0786-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges R. B. Coleman and Lyons.
Defendant G.C. appeals from an order entered on October 20, 2006, denying his application to vacate a Final Restraining Order (FRO) against him issued pursuant to the Prevention of Domestic Violence Act of 1991, N.J.S.A. 2C:25-17 to -35. Defendant also appeals from a provision of that order denying his request for an evidentiary hearing concerning the authenticity of an audiotape produced on September 23, 2003, as evidence in the domestic violence final hearing. Because defendant's application is out of time, we affirm.
The pertinent facts in this matter are as follows. On September 23, 2003, plaintiff L.V. was granted an FRO following a plenary hearing. The FRO prohibited defendant from all future acts of domestic violence toward plaintiff; barred him from certain locations; barred him from having any form of contact or communication with plaintiff and certain others; prohibited defendant from causing anyone else to make harassing communications to plaintiff and others; and prohibited defendant from stalking, following, or threatening to harm or stalk plaintiff and others. At the plenary hearing, defendant was present and represented by counsel. During the course of the hearing, plaintiff, as part of the evidence put forth in support of her application, played a tape which contained four recorded telephone messages from defendant. At the conclusion of the hearing, the trial court granted the order based in part on the tape played.
In the years following the entry of the order, litigation between the parties has continued. There have been complaints by plaintiff that the restraining order has been violated and a civil suit instituted by defendant against plaintiff has also been heard. Defendant alleges that, in these ensuing years, he had the tape, which had been played on September 23, 2003, analyzed by an expert in the field of audiotaping. In the expert's report, dated June 4, 2006, the expert concluded that the tape "was compiled selectively, and contains bits and pieces of telephone messages. As such, it neither accurately nor completely reflects the messages as they were received. This cassette exhibits signs of deliberate manipulation, and as such, is unreliable." Based on this report, defendant filed a motion to vacate the FRO, or, in the alternative, for an evidentiary hearing concerning the authenticity of the tape.
Judge Ellen L. Koblitz, the judge who heard the initial FRO application in 2003, also entertained defendant's motion. The trial judge noted that defendant was present with experienced counsel at the hearing when the tape was played and he did not deny it was his voice on the tape. The court also noted that the FRO "was not granted solely on the basis of the tape nor solely on the basis of the messages." The court concluded that the three-year delay in pursuing the issue of the tape was "too long." Consequently, the court denied the application.
On appeal, defendant argues that the trial court erred and must set aside the FRO as it was procured by fraud. Defendant argues that the tape was "fabricated and was deliberately manipulated to fool the Court into entering a Final Restraining Order." Defendant's counsel notes that pursuant to Rule 4:50-1, the court may relieve a party . . . from a final judgment or order for the following reasons: . . . (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 misconduct of an adverse party . . . .
Defendant alleges that the tape constitutes newly discovered evidence, which came to his attention during a later civil litigation between the parties and that plaintiff committed a fraud and/or a misrepresentation in using the tape at the FRO hearing on September 23, 2003.
As comment 5.2 to Rule 4:50-1 states,
In order for relief to be granted on the ground of newly discovered evidence, the new evidence must (1) be material to the issue and not merely cumulative or impeaching, (2) have been discovered since the trial and must be such as by the exercise of due diligence could not have been discoverable prior to the expiration of the time for moving for a new trial, and (3) be of such a nature as to have been likely to have changed the result if a new trial had been granted. Quick Chek Food Stores v. Springfield Twp. 83 N.J. 438 (1980); Aiello v. Myzie, 88 N.J. Super. 187 (App. Div.), certif. denied, 45 N.J. 594 (1965); State v. Speare, 86 N.J. Super. 565 (App. Div.), certif. denied, 45 N.J. 589 (1965); Nieves v. Baran, 164 N.J. Super. 86 (App. Div. 1978); Posta v. Chung-Loy, 306 N.J. Super. 182, 206 (App. Div. 1997), certif. denied, 154 N.J. 609 (1998). [Pressler, Current N.J. Court Rules, comment 5.2 to R. 4:50-1 (2008).]
While the tape was material to the issue, it was certainly not discovered since the trial. It was played at the trial and experienced counsel represented defendant throughout the trial. Further, the exercise of due diligence could have discovered any irregularities with the tape at the time of the FRO hearing in 2003. We note that during oral argument, defense counsel conceded that no request for an adjournment was made during the FRO hearing so that the tape could be examined. Lastly, given the comments of the trial judge, ...