June 6, 2011
PAUL A. FOGLIA, PLAINTIFF-APPELLANT,
GINA LIOTTA, DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Sussex County, Docket No. FD-19-73-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 10, 2011
Before Judges C.L. Miniman and LeWinn.
The parties, who have never been married to each other, are the parents of two sons born in 1998 and 2004. In September 2004, Paul Foglia was arrested and charged with the murder of Gina Liotta's mother, who was not only the children's grandmother, but had been their caretaker as well. Defendant was indicted for first-degree knowing and/or purposeful murder, N.J.S.A. 2C:11-3(a)(1) and/or (2); second-degree burglary, N.J.S.A. 2C:18-2; first-degree felony murder, N.J.S.A. 2C:11-3(a)(3); and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d). Tried to a jury, he was convicted of knowing and/or purposeful murder, the weapon offense and the lesser-included charge of criminal trespass, N.J.S.A. 2C:18-3. In April 2008, he was sentenced to an aggregate term of life imprisonment subject to the No Early Release Act, N.J.S.A. 2C:43-7.2
Defendant appealed and on July 16, 2010, we reversed based on evidence we deemed improperly admitted under N.J.R.E. 404(b). State v. Foglia, 415 N.J. Super. 106, 120-27 (App. Div.), certif. denied, 205 N.J. 15 (2010). We are not aware of the current status of proceedings on remand.
This appeal involves Foglia's efforts to maintain some form of involvement in his sons' lives. While incarcerated awaiting trial, he filed a motion to compel Liotta to provide him periodically with pictures, progress reports and report cards of the children. On October 11, 2005, a judge of the Family Part entered an order requiring Liotta "to supply . . . three photos of the children to [Foglia]'s counsel along with copies of progress reports and report cards . . . every . . . three months . . . to be done through [the] attorn[ey's] offices for each party."
When Liotta failed to comply with this order, Foglia filed a motion to enforce it and to find her in violation of litigant's rights. On June 30, 2006, the same judge entered an order granting Foglia's motion and providing that "[c]counsel fees and costs associated with [Liotta's] noncompliance with the [c]court [o]rder . . . shall be awarded to [Foglia] in the event of any future failure to comply with the [c]court's [o]rder."
Liotta was apparently compliant with the order for a period of time. In November 2009, however, Foglia, who was then serving a life sentence in State Prison, filed a second motion to hold Liotta in violation of litigant's rights "for failing to comply with" the two prior orders. Foglia's motion was carried to a return date of March 8, 2010. At some point during that interim, Liotta filed a cross-motion to be relieved of the obligation to send photographs and reports of the children to Foglia; she also sought sole legal and residential custody of the children.
Foglia has not included a copy of Liotta's cross-motion in the appendix; as her brief has been suppressed, we have no basis to assess the merits of her grounds for the relief sought. We note further that Foglia has failed to provide us with his certification in support of his November 2009 motion.
On March 8, 2010, a different judge heard oral argument and rendered a decision from the bench denying Foglia's motion and granting Liotta's motion in its entirety. The judge denied Foglia's motion to find Liotta in violation of litigant's rights, finding that she had complied with the prior orders albeit late; the judge also rejected Foglia's claim that the "pictures were not the kind of pictures that he wanted." As we are completely unaware of the assertions and/or documentation Foglia submitted in support of his motion, we are in no position to assess the soundness of these rulings.
The judge granted Liotta's motion to be relieved of sending photographs and reports, finding that "the landscape has changed since" entry of the prior orders, namely, "[t]here was only bail in place" and Foglia had not been convicted. Noting that Foglia had murdered the children's grandmother who was "a substantial caretaker for the children," the judge stated that "the psychological damage done to this family by virtue of this man's acts are unconscionable."
The judge's grant of sole legal and residential custody to Liotta was premised on his finding that Foglia "will continue to be incarcerated through the balance of the time that [the children] are minors, and well beyond that by virtue of his first possible parole date." The judge found that Liotta should not have to have "any communication with [Foglia] which would [be] required for them to make joint legal decisions."
On appeal, Foglia argues that the prior orders of the Family Part are "the law of the case." He contends that "decisions of law made in a case should be respected by all other lower or equal courts during the pendency of th[e] case."
We are satisfied that Foglia's contentions are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We reach this conclusion, at least in part, due to his failure to furnish us with all of the motion papers. In the absence of a complete record, we are unable to determine whether the judge's findings are supported by "'competent, relevant and reasonably credible evidence.'" Cesare v. Cesare, 154 N.J. 394, 412 (1998) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)).
Moreover, the "law of the case" doctrine, upon which Foglia premises his entire argument, does not preclude the order at issue. A court is "'not conclusively bound by [a] prior ruling'" and need not "'treat it as the law of the case'" when "'some new or overriding circumstance'" justifies a different result. State v. Reldan, 100 N.J. 187, 204 (1985) (quoting State v. Hoffler, 389 A.2d 1257 (Conn. 1978)).
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