On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Somerset County, Docket No. FM-18-0106-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 5, 2010
Before Judges Wefing and Koblitz.
Defendant appeals from a trial court order denying his motion for a new trial. After reviewing the record in light of the contentions advanced on appeal, we affirm.
The parties were married in July 1981 and divorced pursuant to a judgment of divorce entered on December 18, 2007. Defendant appealed from that judgment, and we affirmed. Jovic v. Jovic, No. A-2565-07 (App. Div. Apr. 28, 2009). In that opinion, we noted that defendant was appealing not only from that judgment but from the trial court's earlier denial of his motion to vacate an order dismissing his answer and counterclaim as well as a post-trial untimely motion for a new trial. (Slip op. at 1-2). We also noted that although a default had been entered against defendant, the trial court permitted him to introduce documents and to cross-examine plaintiff during the course of the hearing. (Slip op. at 6). The hearing itself spanned three days over a three-month period. (Slip op. at 3). In the course of our opinion, we affirmed the judgment and its provisions with respect to equitable distribution, as well as the additional orders defendant sought to set aside.
While that appeal was pending, defendant filed a motion with the trial court seeking a new trial on the basis of newly discovered evidence. The trial court denied that motion without prejudice in light of the pending appeal. Approximately four months after we affirmed defendant's earlier appeal, he filed a new motion with the trial court seeking a new trial. He appended a certification, stating that he had obtained documentation proving that plaintiff had not testified truthfully at the earlier proceeding with respect to their financial affairs. The trial court denied defendant's motion, and this appeal followed.
We affirm substantially for the reasons stated by Judge Picheca in his order of October 14, 2009. The material that defendant relied upon to establish his entitlement to a new trial was available to him prior to the conclusion of the earlier proceedings in 2007. He cannot satisfy the requisite elements of Rule 4:50-1. Not having acted diligently prior to the earlier hearing, he is not entitled to relief now.
The order under review is affirmed.
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