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Michael Gerty v. Jennifer Gerty N/K/A Jennifer Rohen

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


August 3, 2011

MICHAEL GERTY, PLAINTIFF-APPELLANT,
v.
JENNIFER GERTY N/K/A JENNIFER ROHEN, DEFENDANT-RESPONDENT.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-1007-10A.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted July 26, 2011

Before Judges Graves and Yannotti.

In this post-judgment matrimonial matter, plaintiff Michael Gerty appeals from an order dated November 18, 2010, that granted a motion by defendant Jennifer Rohen to enforce the parties' judgment of divorce (JOD) and denied plaintiff's cross- motion to vacate the JOD. For the reasons that follow, we affirm.

The parties were married on September 2, 2000, and they have two children. Following a five-day trial, the court rendered an oral decision on August 12, 2010, and the JOD was entered on August 27, 2010. Plaintiff did not file a timely appeal from the JOD, and his motion to extend the time to appeal pursuant to Rule 2:4-4 was denied by this court on December 21, 2010.

In her motion to enforce litigant's rights, defendant certified that plaintiff had ignored his "court-ordered responsibilities," and she asked for a judgment "in the amount of $78,768.02,*fn1 or such updated amount as may be determined on the return date of this motion." Defendant also stated that plaintiff had the ability to pay all of his court-ordered obligations even though he was unemployed at the time of trial:

I remind the court that plaintiff produced three witnesses at trial, all of whom professed their willingness and eagerness to assist plaintiff financially. I have ordered the transcript of the testimony of plaintiff's aunt, Arleen Mascolo, who testified that she has over $800,000.00 in the bank. She further testified that all plaintiff has to do is ask her for the money and she will give it to him. Plaintiff cannot claim that he does not have the ability to meet the obligations imposed upon him by this Court.

In response to defendant's motion, plaintiff certified that he had "been interviewing non-stop since the trial" but had "no firm offers for employment." Plaintiff also claimed the court's decision did not contain an "in depth analysis of the law and facts" and "there were many errors in the Judgment itself." Therefore, plaintiff asked the court to vacate the JOD:

I wrestled over whether or not it was appropriate to file an appeal or simply bring these issues back to this court's attention so that they could be appropriately resolved. I verily believe that this court will see the errors and reopen this matter so that the issues can be resolved appropriately. After spending substantial time with this court over the course of the trial, it is very clear that the court does want to reach a result for myself, the defendant, and the children that is a good result, not a result that will cause turmoil and chaos.

For these reasons I respectfully request that the court grant my motion to vacate the August 27, 2010 Judgment. Plaintiff represented himself at trial, but he obtained counsel prior to filing his cross-motion. During oral argument on November 12, 2010, plaintiff's attorney argued that plaintiff thought he was going to court "simply to deal with the removal issues."*fn2 However, the court noted that the parties' financial circumstances were an "integral part" of the trial:

His wife, his ex-wife testified very explicitly. She was willing to stay here. It was her fear of instability and the absolute lack of stability that was here that was the basis for her removal application.

So finances [were] an integral part of this trial. And your client knew that. He went into his finances for days on the stand. So don't be fooled by somebody later saying oh but if only I had known. . . . I don't buy it one bit.

With all due respect [to] Mr. Gerty, 90 percent of that trial was about finances.

The trial court granted defendant's enforcement motion and denied plaintiff's cross-motion to vacate the JOD. An order memorializing the court's decision was entered on November 18, 2010, and this appeal followed.

Plaintiff raises the following points on appeal:

POINT I

THE TRIAL COURT MISAPPLIED ITS DISCRETION IN FAILING TO VACATE THE JUDGMENT OF DIVORCE FILED ON AUGUST 28, 2010.

POINT II

THE TRIAL COURT MISAPPLIED ITS DISCRETION IN DENYING THE PLAINTIFF'S REQUEST FOR AN ABILITY TO PAY HEARING.

POINT III

THE TRIAL COURT FAILED TO MAKE FINDINGS OF FACT AND CONCLUSIONS OF LAW.

Based on our review of the record and the applicable law, we are satisfied that plaintiff's arguments are without sufficient merit to warrant extended discussion. R. 2:11- 3(e)(1)(E). We add the following comments, however. As previously noted, plaintiff did not file a timely appeal from the JOD and his motion to extend the time for filing was denied. Nevertheless, he now argues that the JOD should be vacated because "[t]he decision is so overwhelming in favor of the defendant and against the plaintiff that on its face [it is] patently inequitable." We do not agree. "Rule 4:50-1 provides for extraordinary relief and may be invoked only upon a showing of exceptional circumstances. Absent exceptional and compelling circumstances, failure to obtain relief through the usual channels of appeal is not a reason justifying relief under Rule 4:50-1." Baumann v. Marinaro, 95 N.J. 380, 393 (1984); see also Wausau Ins. Co. v. Prudential Prop. & Cas. Ins. Co. of N.J., 312 N.J. Super. 516, 519 (App. Div. 1998) ("It is well established that an R. 4:50 motion may not be used as a substitute for a timely appeal."). Based on the limited record before us, we find no abuse of discretion by the trial court and affirm the denial of plaintiff's motion to vacate the JOD.

Plaintiff also claims the trial court erred in denying his request for an ability-to-pay hearing. However, the record reflects that the court recognized the need for an ability-to- pay hearing in the event that a bench warrant is issued for plaintiff's arrest. See Pasqua v. Council, 186 N.J. 127, 141 n.2 (2006) (noting that a party's failure to comply with a court's order must be willful before the court may order "coercive incarceration"); see also Essex Cnty. Welfare Bd. v. Perkins, 133 N.J. Super. 189, 195 (App. Div.), certif. denied, 68 N.J. 161 (1975).

Affirmed.


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