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Robert L. Wheeler v. Ellen A. Wheeler

April 1, 2011

ROBERT L. WHEELER, PLAINTIFF-APPELLANT,
v.
ELLEN A. WHEELER, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FM-12-1900-03G.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 3, 2011

Before Judges Rodriguez, Miniman and LeWinn.

Robert L. Wheeler appeals from a March 19, 2010, Family Part order in favor of his ex-wife Ellen A. Wheeler. The order denied Robert's motion requesting reconsideration of Judge Deborah J. Venezia's prior order denying reconsideration of the denial of a motion to modify his support obligation. The order also denied Robert's motion to recuse Judge Venezia.

In a separate opinion decided today, we rejected Robert's appeal regarding the denial of prior motions dealing with some of the same issues, i.e., the termination of his alimony and life insurance obligations based on changed circumstances.*fn1

Because the same parties are involved, we detail only the facts that are relevant to this appeal.

In January of 2009, Ellen moved for the fourth time since 2006 to enforce alimony; collect arrears; and compel Robert to obtain the $250,000 life insurance policy previously ordered. Responding in the same manner as he had for the prior three motions, Robert cross-moved to reduce or eliminate his obligations.

On January 23, 2009, Judge Venezia granted Ellen's motion and found that Robert "failed to establish a prima facie case of changed circumstances." Robert moved for reconsideration, alleging that Ellen committed constructive fraud by seeking to enforce alimony arrears that she had actually received. The judge denied Robert's motion and granted Ellen counsel fees.

Judge Venezia denied Robert's subsequent motion for reconsideration on June 12, 2009. Undaunted, Robert again moved for reconsideration.

By the judge's December 3, 2009 decision on this motion, Robert was over $14,000 in arrears. Judge Venezia denied the motion, explaining that "[w]ith [each] successive application, [Robert] has supplied additional financial information that was lacking in the prior motions." Robert's most recent Case Information Statement (CIS) reflected a 2008 income of $111,000, five-times greater than the $20,000 of 2008 income which he reported in his initial CIS. Further, Judge Venezia found that Robert's economic condition was merely temporary. The judge also denied Robert's motion concerning Ellen's alleged constructive fraud claim.

Regarding the motion for recusal, even if the judge "had some independent recollection," of Robert appearing before her in an earlier criminal action, he "has been before this court with several applications over the course of the past year and never brought same to the court's attention." Thus, the request was untimely. Without any other allegations of gender or race bias or even a transcript of that earlier proceeding, Robert's "dissatisfaction with the Court's rulings [was] not a basis on which the Court would recuse itself."

Judge Venezia denied another motion for reconsideration on March 19, 2010. This appeal challenges that decision.

On appeal, Robert contends that the judge: (1) erred in rejecting his request to modify his alimony obligations; (2) improperly denied relief for Ellen's alleged constructive fraud; and (3) erred in determining that Robert should not be permitted to reduce his life insurance. Having addressed these contentions ...


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