December 7, 2007
DONNA TSITSOULAS, PLAINTIFF-RESPONDENT,
LAZARUS TSITSOULAS, DEFENDANT-APPELLANT.
On appeal from Superior Court of Division, Chancery Division, Family Part, Morris County, Docket No. FM-14-260-96.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 13, 2007
Before Judges S.L. Reisner and Baxter.
Defendant Lazarus Tsitsoulas appeals from an October 18, 2006 order that denied his motion, filed pursuant to Rule 4:50-1, for relief from a May 1, 2006 order. We affirm.
The May 1, 2006 order provided that: 1) defendant was required to attend a minimum of ten counseling sessions with a psychologist, and provide a report from a licensed psychologist evaluating his relationship with his two sons and the effect that his conduct had had upon them; 2) defendant was prohibited from having any further visitation with the younger child, then age eleven, until after the court received the psychologist's report that was required by the order; 3) defendant was permitted parenting time with the older son, then age thirteen, but if defendant was late or missed a session, he would forfeit his right to the next session; and 4) defendant was required to make all pickups and drop-offs of the parties' older son at plaintiff's house, but only at curbside.
The order of May 1, 2006 was supported by a detailed statement of reasons by Judge McCarthy. We summarize the judge's reasons. The first sentence is telling: "the parties are no strangers to the Morris County Superior Court." The judge then noted that the FM docket contained more than 400 entries involving these two parties. The judge observed that defendant's conduct had so "alienated" and frightened the younger son that, according to a DYFS report, the child refused to visit with his father at all. A family therapist also reported to the court that defendant had hit the child and locked him in a closet. Additionally, defendant's conduct at his sons' school resulted in his arrest in September 2005. On another occasion, defendant took the children out of state without permission, or even informing plaintiff of the children's whereabouts. Judge McCarthy observed that defendant's "erratic" behavior had "damage[d]" his relationships with both children, especially the younger son, and that the boys were quickly approaching an age where the damage would be irreparable. For that reason, the judge urged defendant to complete the items included in the May 1, 2006 order "with a real sense of urgency."
Except for motions for relief from default judgment, which are liberally viewed, a motion for relief from judgment based on any one of the six grounds specified in Rule 4:50-1 should be granted sparingly. Hous. Auth. of Morristown v. Little, 135 N.J. 274, 283-84 (1994). All motions for relief are addressed to the sound discretion of the trial court, whose determination will be left undisturbed unless it results from a clear abuse of discretion. Ibid.
Defendant's principal basis for seeking relief from judgment is the trial court's failure, at the time it entered the May 1, 2006 order, to conduct a plenary hearing. Instead, the court based its May 1, 2006 order solely upon the affidavits and oral argument presented during the motion hearing. When Judge McCarthy denied defendant's October 18, 2006 motion for relief from judgment, the judge explained that he did not need a hearing at the time he entered the May 1, 2006 order because he was already very familiar with defendant and his "adamant refus[al] to take any constructive steps toward remedying [his] largely self-inflicted predicament with his family."
We have carefully considered defendant's arguments in light of the record and applicable law, and conclude that they lack sufficient merit to warrant discussion in a written opinion. We affirm substantially for the reasons set forth by Judge McCarthy in his statement of reasons accompanying his order of October 18, 2006. R. 2:11-3(e)(1)(A) and (E). We add only the following comments.
First, there is no absolute right to a plenary hearing. A plenary hearing should generally be ordered if the terms of visitation are disputed, and a hearing would assist the court in resolving the issues presented. P.T. v. M.S., 325 N.J. Super. 193, 214 (App. Div. 1999). It stands to reason that if the hearing would not be helpful to resolving the issues, a judge is not required to hold one. Judge McCarthy provided ample reasons why a plenary hearing would not have been helpful and was not needed. Defendant has presented no meritorious basis for us to disagree with those reasons.
Second, as Judge McCarthy observed, defendant's motion for relief from judgment made no effort to support that motion with any of the bases contained in Rule 4:50-1 for obtaining relief from judgment. Defendant did not allege "(a) mistake, inadvertence, surprise, or excusable neglect; (b) newly discovered evidence . . .; (c) fraud . . . misrepresentation, or other misconduct of an adverse party; (d) the judgment or order is void; [or] (e) the judgment or order has been satisfied, released or discharged . . . ." The only remaining provision of Rule 4:50-1 is subsection (f), which provides that a court may grant relief from judgment for "any other reason justifying relief from the operation of the judgment or order." Other than his contentions concerning the judge's failure to conduct a plenary hearing at the time the May 1, 2006 order was entered, defendant provides no other basis that would warrant our intervention.
Third, as to defendant's claim that the May 1, 2006 order was not supported by a statement of reasons supporting a restriction on defendant's visitation, we disagree.
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