On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FM-12-1083-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Stern and C.S. Fisher.
Defendant appeals from an order of July 6, 2007, denying his motion for a new trial of this matrimonial action which motion was filed after we affirmed the judgment in an unpublished opinion. He asserts that his requests for adjournment of the trial should have been granted because the Social Security Administration determined that he was disabled. His requests for adjournment were based on his health concerns but the Social Security determination was not then available. The initial trial date of September 6, 2005 was adjourned to October 28, 2005, but defendant's application to adjourn that date was denied,*fn1 and the case was tried on October 28, October 31 and November 1, 2005. Following an oral decision that day, a Dual Judgment of Divorce was entered on November 1, 2005. Amended judgments were entered on November 28 and December 21, 2005. Defendant's subsequent post-judgment applications, including for reconsideration, were denied.*fn2 Other motions were subsequently denied for lack of jurisdiction because of the pending appeal.
We affirmed the judgment on April 13, 2007. We noted that the appeal from the judgment itself was untimely, but found no basis to order a new trial.
On May 14, 2007, we denied a motion for reconsideration "without prejudice to an application to the trial court for a new trial based on the allegedly new medical evidence which is asserted to be relevant to Defendant's condition at the time of trial." This appeal is from the denial of that motion by the Family Part.
By opinion dated April 5, 2007, one week before our opinion on the appeal was filed, the Office of Disability Adjudication and Review determined that between September 26, 2003 and April 1, 2006 defendant suffered from Hepatitis C, diabetes, depression and obesity, and concluded with respect to the period "from October 1, 2004 through November 30, 2005 the claimant was unable to perform his past relevant work." According to the Examiner, "the claimant was under a disability, as defined by the Social Security Act, from October 1, 2004 through November 30, 2005."
In his order of July 6, 2007, the trial judge wrote:
Although Defendant's Motion for a new trial, certification, and accompanying exhibit(s) allege newly discovered medical evidence, in that Defendant was declared temporarily disabled by the Social Security Administration during the time of the divorce, Defendant's moving papers noticeably lack the assertion that this "new evidence" would likely change the result of the divorce proceeding, equitable distribution, or the Court's custody determination. On the contrary, Plaintiff's cross moving papers and accompanying brief specially address that the presence of Defendant's disability at the time of the trial would not have produced another result, specifically because Defendant's disability terminated one month after the divorce was granted. The Court accepts the assertions in Plaintiff's brief that (1) the division of property under equitable distribution would not be affected, (2) the award of alimony and child support would not be materially altered because Defendant's ability to return to his previous working capacity was restored one month after the divorce; and (3) the custody determination would remain the same despite the disability.
The Court has reviewed the entirety of the SSA's decision, and finds that the decision of an administrative agency as to Defendant's disability is not the equivalent of medical expert testimony regarding Defendant's competency to participate in the divorce proceeding. Defendant's motion provides no medical documentation from Defendant's own physicians or experts regarding his condition at the time of trial, and whether this rendered him incapable of participating. Further, although the Court does not purport to be a medical expert, the Court's own observations of Defendant during the trial do not suggest Defendant did not understand the nature of the proceedings and that he could not actively participate in the process. Likewise, Defendant even admits that after the trial concluded, he filed two pro se Motions for Reconsideration within the rules prescribed by Court. As such, the Court finds that the determination by the SSA that Defendant was temporarily disabled is not the equivalent of medical expert testimony regarding Defendant's incompetence at the time of trial, nor does it, on its own, override the Court's own observations of Defendant prior to and throughout the trial.
The Court also points out that prior to the trial, Defendant indicated he could only function for several hours at a time. The Defendant was using this request to adjourn the matter, which had been adjourned on several previous occasions by another judge.
The Court denied the adjournment request and indicated the trial would proceed, but either on Defendant's request after several hours, or the Court's observations that Defendant was having problems, the Court would suspend the proceedings in order for the Defendant to rest or sleep. At no time during the proceedings did Defendant ever request the trial be stopped, or give any appearance of falling asleep, or appear in any way incapable of proceeding. On ...