May 27, 2011
PATRICK KELLY, PLAINTIFF-APPELLANT,
DEBRA KESSLER, F/K/A, DEBRA KELLY, DEFENDANT-RESPONDENT.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FM-02-803-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 11, 2011
Before Judges Ashrafi and Newman.
Plaintiff Patrick Kelly appeals from an order of November 10, 2009 denying his untimely motion for reconsideration of an earlier order of May 29, 2009. This earlier order denied plaintiff communication and visitation with his four children, ages twenty-three, twenty-one, eighteen, and thirteen. In the May 29, 2009 order, the court found that plaintiff "failed to show any recent change of circumstances to warrant visitation in the time since visitations were terminated." The order also noted that the three older children "have all expressed to the Court no interest in communication with the plaintiff." The court went on to comment: "[a]lthough not all legally emancipated, they are certainly of age to make a choice regarding communication with their father."
The order then went on to state that it was "not in the best interest of [the youngest child], age 13, to grant telephone communication, written communication, or any visitation" based "on the totality of the circumstances and history of this Case."
Plaintiff moved well out of time for reconsideration of the May 29, 2009 order. The court, in its November 10, 2009 order, noted that the motion was filed more than ninety days after the May order. However, even if the motion was considered, the court found that the documentation and papers submitted did not satisfy the requirements under Rule 4:50-1 to modify the prior order and decision of the court.
Plaintiff has been incarcerated in the State of New York since the latter part of 2005. According to his brief, he expected to be released 130 days after the filing of his appeal brief on December 13, 2010. Indeed, he has filed a motion to accelerate the decision in this appeal because the recent motion he filed with the trial court will not be heard until this appeal is decided. He represents in his motion to us that he is no longer incarcerated and is employed. The gravamen of his motion appears to relate to his ex-wife's relocation to the State of Florida. We express no opinion on the merits of the motion pending in the trial court.
Insofar as this appeal is concerned, plaintiff's motion for reconsideration was filed well outside the twenty-day time limit. R. 4:49-2. The trial court further observed that although plaintiff was incarcerated, he furnished no explanation why he filed the motion so late when he had filed his initial motion while incarcerated. Notwithstanding, the trial court went "one step further" and found no support in plaintiff's papers to "show any mistake, inadvertence, or any newly discovered evidence" to cause the court "to change and/or modify its prior Opinion and Decision." R. 4:50-1. Submission of a four-year-old order issued prior to plaintiff's incarceration referencing his former wife's interference with parenting time was not considered "relevant newly discovered evidence."
We discern no error in the trial court's denial of plaintiff's motion for reconsideration, nor affecting the underlying order of May 29, 2009, barring communications and visitation with his four children, on the record plaintiff has provided on appeal.
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