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Gary Ewing v. Olivia Hart

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


June 14, 2012

GARY EWING, PLAINTIFF-APPELLANT,
v.
OLIVIA HART, DEFENDANT-RESPONDENT.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FD-12-426-97.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 17, 2012

Before Judges Simonelli and Hayden.

Plaintiff Gary Ewing appeals from those parts of a June 16, 2011 Family Part order, which (1) granted his motion in aid of litigant's rights for an order finding defendant Olivia Hart in contempt of court for violating his parenting time rights; (2) denied without prejudice his motion for an order remanding Hart back to New Jersey and charging her with custodial interference; and (3) denied without prejudice the additional requests he had made in a reply certification. We affirm.

According to Ewing, this matter has a long and tortured procedural history.*fn1 We focus on the facts and procedural history pertinent to this appeal.

The parties, who never married, have two sons, born in 1995 and 1998 respectively. A June 7, 2002 consent order permitted Hart to relocate with the children to the State of Washington. A January 16, 2008 order granted Ewing parenting time in New Jersey during winter breaks from December 26 to 31 each year, three consecutive weeks each summer, and alternating spring breaks starting in 2008, and in the State of Washington for one weekend per month.

Ewing did not have parenting time with the children in New Jersey in December 2010. As a result, in February 2011, he filed a motion for an order holding Hart in contempt of the January 16, 2008 order, and remanding her back to New Jersey and charging her with custodial interference. He demanded in his motion papers that the court "[p]ut [Hart's] ass in jail and this crap will stop!" He also stated that [i]f the State needs money transporting Hart back to New Jersey get the funds from the federally funded Grants to States for Access and Visitation Programs Sec. 469B [42 U.S.C. 669b] this way once I have a relationship with my children there will be two less "fatherless black children" in America that the media has indoctrinated us to believe in with all of their anti-father propaganda which in reality is nothing less that the New Jim Crow repackaged!

Hart opposed Ewing's motion and filed a cross-motion, seeking mediation or case management on the parenting time issue, an audit of Ewing's child support arrears, and a lump sum payment of arrears, among other things.

The trial judge entered a multi-paragraph order on June 16, 2011. In paragraph one, the judge granted Ewing's motion to hold Hart in contempt of court for violating the January 16, 2008 order, and permitted Ewing to file a motion for a change in custody if Hart continued to violate that order. In paragraph two, the judge denied without prejudice Ewing's motion to remand Hart back to New Jersey and charge her with custodial interference. In paragraph thirteen, the judge denied without prejudice "[a]ny other claims for relief not expressly addressed in the Court's Order . . . including but not limited to Plaintiff's additional requests in his Reply Certification, as one cannot add new requests in a Reply."*fn2

Ewing filed an appeal on July 13, 2011, challenging only paragraphs one and two of the June 16, 2011 order. Thereafter, on July 18, 2011, the judge submitted an amplification pursuant to Rule 2:5-1(b). The judge noted that she had granted Ewing's motion to hold Hart in contempt, and thus, it was unclear to her why Ewing was appealing paragraph one. With respect to paragraph two, the judge noted that the federal statutes Ewing cited in his motion papers did not provide funding to transport parents facing charges of custodial interference. On August 8, 2011, Ewing filed an amended notice of appeal additionally challenging paragraph thirteen. On appeal, Ewing raises the following contentions:

ARGUMENT I

TRIAL COURT FAILED TO APPLY RELEVANT CASE[]LAW PERTAINING TO SANCTIONS THAT WOULD COMPEL THE DEFENDANT INTO COMPLYING WITH THE JANUARY 16TH 2008 COURT ORDER.

ARGUMENT II

TRIAL COURT FAILED TO APPLY THE STATUTE PERTAINING TO PARENTING TIME VIOLATIONS THAT

WOULD COMPEL THE DEFENDANT INTO COMPLYING WITH THE JANUARY 16TH 2008 COURT ORDER.

ARGUMENT III

TRIAL COURT FAILED TO APPLY THE COURT RULE PERTAINING TO PARENTING TIME VIOLATIONS THAT WOULD COMPEL THE DEFENDANT INTO COMPLYING WITH THE JANUARY 16TH 2008 COURT ORDER.

ARGUMENT IV

TRIAL COURT FAILED TO ENFORCE THE JANUARY 16TH 2008 COURT ORDER AS IF WASHINGTON STATE IS A COUNTRY THAT IS [A] NON-SIGNATORY TO THE HAGUE CONVENTION.

(A) Trial court failed to enforce current or future compliance.

(B) Trial court failed to enforce the court order in a timely fashion.

ARGUMENT V

TRIAL COURT ERRED BY FAILING TO USE JUDICIAL ENFORCEMENT DISCRETION.

(A) Trial court failed to recognize all legal options.

ARGUMENT VI

TRIAL COURT'S PROPOSED RELIEF WAS OUTSIDE THE BOUNDS OF REASONABLENESS.

ARGUMENT VII

CONTEMPT OF COURT SANCTIONS WERE BIAS[ED] AND NOT APPLIED EQUALLY AS PER COURT RULE.

(A) The defendant's pleadings were filed late.

ARGUMENT VIII

TRIAL COURT'S LETTER TO SUPPLEMENT THE RECORD DATED JULY 14, 2011 WAS ERRONEOUS.

(A) Trial court findings of fact were flawed.

(B) Trial court findings of fact were flawed concerning the amount of tickets that needed to be purchased.

(C) Trial court findings of fact were flawed concerning the amount of children I have, therefore inflating airfare costs.

(D) Trial court findings of fact were flawed concerning legal fees.

(E) Trial court findings of fact were flawed because there are two separate issues being decided as one.

We have considered these contentions in light of the record and applicable legal principles and conclude they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). However, we make the following brief comments.

We review a Family Part judge's decision on a motion in aid of litigant's rights under an abuse-of-discretion standard. See Saltzman v. Saltzman, 290 N.J. Super. 117, 125 (App. Div. 1996). "[An] abuse of discretion only arises on demonstration of 'manifest error or injustice[,]'" Hisenaj v. Kuehner, 194 N.J. 6, 20 (2008) (quoting State v. Torres, 183 N.J. 554, 572 (2005)), and occurs when the trial judge's "decision [was] made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis."

Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002). We discern no abuse of discretion here. The judge granted Ewing's motion and held Hart in contempt of court for violating the January 16, 2008 order. The judge also applied an appropriate remedy by permitting Ewing to file a motion for a change in custody if Hart continued to violate the order. In addition, there is nothing preventing Ewing from visiting his children in the State of Washington, which it appears he has never done.

Affirmed.


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