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Kelly J. Franchetti v. Joseph A. Franchetti

February 9, 2012


On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Gloucester County, Docket No. FM-08-464-07.

Per curiam.


Argued November 10, 2011

Before Judges Cuff, Waugh and St. John.

Defendant Joseph A. Franchetti, Sr. appeals from two orders of the Family Part: (1) the September 29, 2009 order denying his Rule 4:50-1 motion to set aside the financial terms of the final judgment of divorce (JOD) between the parties and for a new trial; and (2) the June 14, 2010 order denying his motion to reduce his support obligations and for other relief. For the reasons explained below, we affirm.

The following summarizes the facts and procedural history surrounding the entry of the JOD and the post-judgment motions related to the parties' bitter and protracted dispute over alimony and child custody.

The parties were married on October 29, 1994. Two children were born of the marriage, a son born in 1995, and a daughter born in 1999. On January 8, 2007, plaintiff Kelly Franchetti filed a complaint for divorce. On August 22, 2007, the parties appeared before a matrimonial early settlement, but the parties could not reach a settlement panel.

The trial, which was originally scheduled for September 6, 2007, was subsequently rescheduled for October 2, 2007. A notice of scheduled appearance for trial, dated August 23, 2007, was sent to the parties, notifying them that trial was scheduled before Judge John Tomasello on October 2, 2007 at 9:00 a.m. Defendant, who was appearing pro se, acknowledges that plaintiff's attorney called him and left a message confirming the new trial date.

Defendant failed to appear for trial on October 2. The judge took testimony from plaintiff and entered an order awarding her a divorce, alimony of $1800 per week, child support of $443 per week, and sole custody of the parties' two children. On October 15, the judge entered an amended JOD, nunc pro tunc to October 2. The amended JOD contained the same alimony, child support, and custody arrangement.

On October 16, 2007, defendant filed a Rule 4:50-1*fn1 motion to reopen the JOD, arguing that he failed to appear at the trial because he "made an incorrect diary entry for the time of the court hearing," and believed the hearing was scheduled for 1:30 p.m. However, defendant subsequently retained counsel, who withdrew the Rule 4:50-1 motion, and moved for parenting time and joint custody. On November 16, 2007, the judge entered an order confirming defendant's withdrawal of his motion to reopen the JOD, but granted, in part, defendant's motion for parenting time with his children.

In 2008, defendant filed a second motion to reopen the JOD pursuant to Rule 4:50-1.*fn2 Defendant sought to "set aside the financial terms of the [JOD]" so that a new trial could be granted, during which he would submit evidence and testimony in support of his position that the financial terms of the JOD were excessive. Defendant maintained then, as he does now, that the judge who heard the divorce "relied solely on the testimony and inaccurate/incomplete information provided by the plaintiff." Defendant contended that the income of $5288 per week attributed to him was "far in excess of what [] [he] made." He argued that, had he been present at the trial, he could have offered "material support, such as [his] pay stubs, or tax information[,]" that the amount of alimony and child custody awarded would have been lower.

On September 19, 2008, Judge Tomasello denied defendant's motion without prejudice, finding that defendant had not provided sufficient evidence to support his assertions. The judge relaxed the terms of the Final Restraining Order previously obtained by plaintiff, allowing the parties to communicate with each other about the children by e-mail and text messaging. However, the judge denied defendant's request for joint legal custody. Finally, the judge scheduled an October 23, 2008 "ability to pay" hearing with respect to defendant's arrearages.*fn3

On April 8, 2009, defendant filed another Rule 4:50-1 motion, seeking essentially the same financial relief. On September 21 and 28, 2009, the motion judge held hearings and heard arguments on defendant's motion. On September 28, 2009, Judge Richard S. Hoffman delivered an oral decision denying defendant's motion. He advised defendant that "you cannot file a Motion before one Judge, then when that Judge is reassigned bring essentially the same Motion before another Judge[.]" The motion judge then stated:

Rule 4:50-1(a) through (c), requires that the Motion be filed within one year,*fn4 which this was not. So paragraph (f) does not have a time limitation, a precise time limitation and that is, any other reason justifying relief from the operation of the Judgment or Order. That has been basically to interpret a reasonable time and what constitutes a reasonable time is dependent upon the totality of the circumstances . . . . I was just looking at Judge Tomasello's findings relative to the hearing on ...

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