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Gary Ewing v. Olivia Hart

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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...


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