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Sherman v. Garcia

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


February 25, 2008

MARIA C. PRADO SHERMAN (F/K/A GARCIA), PLAINTIFF-RESPONDENT,
v.
DWIGHT E. GARCIA, DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FM-02-7478-93.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued February 5, 2008

Before Judges Skillman and Winkelstein.

Defendant appeals from an October 6, 2006 order of the trial court that denied his motion for relief from parts of the 1996 judgment of divorce between the parties and required defendant to pay plaintiff $500 for the counsel fees she incurred in opposing the motion. Defendant presents the following arguments:

I. THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION WITHOUT CONSIDERING ITS MERITS.

II. THE TRIAL COURT'S FAILURE TO MAKE RELEVANT FINDINGS OF FACT AND CONCLUSIONS OF LAW MANDATES REVERSAL OF ITS ORDER.

III. THE TRIAL COURT ERRED IN FAILING TO ORDER A PLENARY HEARING AS TO THE MERITS OF DEFENDANT'S CLAIMS.

IV. THE TRIAL COURT ERRED IN ITS SUA SPONTE AWARD OF COUNSEL FEES TO PLAINTIFF.

V. ON REMAND, THIS MATTER SHOULD BE HEARD BY A DIFFERENT JUDGE.

We reject these arguments and affirm the October 6, 2006 order substantially for the reasons set forth in the written opinion attached to the order. We add the following supplemental comments.

Defendant's primary claim on the motion was that the equitable distribution provisions of the judgment of divorce should be modified because at the time of the divorce plaintiff fraudulently concealed a savings account containing $3,720.65 and a workers' compensation award of $21,700. However, a motion for relief from a judgment based on alleged fraud must be made within one-year of the judgment. R. 4:50-2. Even if this one- year time period is extendable based on a showing that the moving party could not have discovered the alleged fraud within that period, defendant's papers did not undertake to describe how he discovered the alleged fraud or to explain why that alleged fraud could not have been discovered sooner. Therefore, defendant did not provide any basis for relaxation of the one-year limit provided by Rule 4:50-2 for a motion under Rule 4:50-1(c). Defendant's arguments do not warrant any additional discussion. R. 2:11-3(e)(1)(E).

Affirmed.

20080225

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