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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 15, 2009
Before Judges Stern and J. N. Harris.
This is the fourth appeal by defendant. It has its genesis in our mandate to the Family Part "to permit defendant to proceed with a Rule 4:50-1 application and for a plenary hearing as to the impact of the Social Security determination and defendant's medical condition on his ability to try the matrimonial action in late October 2005."*fn1 Defendant seeks review of two determinations that were rendered against him on remand. The first denied defendant's application for a court-ordered medical examination pursuant to Rule 5:3-3(a). The second denied defendant's application for a new trial pursuant to Rule 4:50-1.
Plaintiff and defendant were married on July 2, 1994. Plaintiff filed a complaint for divorce in 2004. The parties prepared for trial, which was initially scheduled for September 2005, but was adjourned until the end of October 2005. The trial commenced on October 28, 2005, and proceeded over a total of three days. Defendant requested yet another adjournment of the trial and sought certain accommodations because of his putative medical condition. The trial was not adjourned.
At the conclusion of the trial on November 1, 2005, a "Dual Judgment of Divorce" was entered. An "Amended Dual Judgment of Divorce" was entered and filed on November 28, 2005; subsequently, a "Second Amended Dual Judgment of Divorce" was entered and filed on December 21, 2005.
Immediately following the trial and entry of the first judgment, on November 9, 2005, defendant filed a motion for reconsideration. The object of the motion was to persuade the trial judge that the divorce judgment should be vacated because the trial should have been adjourned. The motion was denied on December 16, 2005.
Defendant then embarked upon a campaign of motion practice in the Family Part throughout the next several months. After suffering a series of denials of his various motions for reconsideration, defendant filed the first of four notices of appeal on April 3, 2006. In our first opinion among the appeals that followed, we determined that defendant's appeal of the divorce judgment was "far out of time" and "there appears an insufficient basis on which to order a new trial or conclude that a new trial would affect the result."*fn2
Shortly before we filed that first opinion, the Office of Disability Adjudication and Review of the Social Security Administration ruled on defendant's then-pending application for a period of disability, disability insurance benefits, and supplemental security income. The Administrative Law Judge concluded, "from October 1, 2004 through November 30, 2005 the claimant was unable to perform his past relevant work." Those findings, rendered eight days before ours, included:
I am satisfied that, during the time the claimant was undergoing interferon treatment from October 1, 2004 through November 30, 2005 the side effects from that medication, such as fatigue and difficulty concentrating, along with his foot fracture, his poorly controlled diabetes and his moderate depression would have reasonably precluded any gainful employment.
Defendant asserts that this pronouncement supports his view that he "was medically incompetent to stand trial due to multiple medical conditions and the side effects of all of the pharmaceutical medications in light of defendant's Social Security award letter."
On May 14, 2007, this court 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." The denial of that motion engendered the third notice of appeal, which we will discuss.
Before we decided the first appeal, defendant filed his second notice of appeal on November 21, 2006. The second appeal sought review of an order of August 25, 2006 denying his post-judgment motion for relief of judgment pursuant to Rule 4:50-1(c) and a subsequent motion denying reconsideration. The Family Part declined to decide the merits of defendant's motions because of the existing first appeal. See R. 2:9-1(a). We ultimately dismissed the second appeal as moot, but directed the Family Part to hear and decide any other pending Rule 4:50 application not yet considered within thirty days because of the pending first appeal. Steele v. Steele, No. A-1749-06T1 (App. Div. January 22, 2008).
The already-mentioned third notice of appeal sought review of the Family Part's order of July 6, 2007, which denied - on the merits - defendant's motion for a new trial. This motion was decided on the papers without an evidentiary hearing, and squarely considered defendant's medical condition in 2005, the Social Security adjudication, and defendant's ability to participate in the matrimonial trial. After reviewing the motion judge's oral and written determinations, including his direct observations made of defendant while overseeing the trial,*fn3 we remanded the matter to the Family Part "for a plenary hearing as to the impact of the Social Security determination and defendant's condition on his ability to try the matrimonial action in late October 2005." Our rationale was that because the motion for a new trial had been decided without the benefit of any testimony, we felt that defendant should be given an opportunity to convince the Family Part of his inability to try ...